1. This petition, under Article 133(1) of the Constitution of India, for the grant of a certificate that the case is a fit one For appeal to the Supreme Court is directed against an order of this Court, dated the 8th January 1968, whereby an application of the petitioner, under Section 151, C. P. C., for the reconstruction of the record of an appeal, was dismissed. The application was based on the following allegations:--
2. The respondent had instituted a suit, against the petitioner, for the recovery of Rs. 1,40,000, as damages. The Senior Subordinate Judge, Chamba, who had disposed of the suit, had granted a decree for the recovery of Rs. 28,767-1-2, in favour of the respondent. The petitioner, through the Government Advocate, Chamba, had filed an appeal, in the Court of the Judicial Commissioner, against the decision of the Senior Subordinate Judge. The appeal was returned to the Government Advocate with certain office objections. The objections were complied with and the appeal was refiled in the Court of the Senior Subordinate Judge for being forwarded to the Court of the Judicial Commissioner. The appeal was not fixed for hearing, though the Judicial Commissioner had come on Circuit to Chamba many a time, after the refiling of the appeal. The Government Advocate made enquiries. He could not find any clue of the appeal in the office of the Judicial Commissioner. The petitioner prayed that the appeal which was lost for no fault of the petitioner may be reconstructed.
3. The application was contested, on behalf of the respondent.
4. This Court, by its order, dated the 8th January 1966, dismissed the application, holding that, after its return to the Government Advocate, the appeal was never refiled and that as the appeal did not come in the custody of this Court, there could be no question of the re-construction of the appeal, under the inherent powers of the Court.
5. The petitioner has put in the present petition for the grant of a certificate that the case is a fit one for appeal to the Supreme Court.
6. The petition has been opposed, on behalf of the respondent.
7. The respondent had instituted a suit for the recovery of Rs. 1,40,000. It was granted a decree for Rs 28,767-1-2. It is clear that the order of this Court, dated the 8th January 1966, rejecting the application of the petitioner, under Section 151, C. P. C., to reconstruct the appeal, directly involves a question respecting an amount of more than rupees twentythousand. The petitioner will be entitled to get the certificate under Clause (b), Article 133 (1) of the Constitution. The objection, on behalf of the respondent, against the grant of the certificate, was that the order of this Court was not A judgment, decree or final order within the meaning of Article 133 (1) of the Constitution and was not, therefore, appealable. The contention of the learned counsel for the petitioner was that the order of this Court was a final order and was appealable. The learned counsel for the respondent cited a number of rulings in support of his contention that the order of this Court was not a final order within the meaning of Article 133 (1). The learned counsel for the petitioner did not cite any authority in support of his contention that the order was a final order.
8. The connotation of the expression 'final order', used in Article 133 (1) of the Constitution, was explained by their Lordships of the Supreme Court in Jethanand and Sons v. State of Uttar Pradesh, AIR 1961 SC 794, as follows:--
'An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Article 133'.
9. S. Kuppuswami Rao v. The King, AIR 1949 FC 1, was a case, under Section 205 of the Government of India Act. The expression 'final order', occurring in that section, was explained as under:--
''Final order' must be an order which finally determines the points in dispute and brings the case to an end.To constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way.'
10. The question, whether the order, dated the 8th January 1966 of (his Court, is a final order or not is to be decided in the light of the principles, laid down in the aforesaid authorities. The order of this Court substantially affected the rights of the parties. It not only put an end to the application, under Section 151, C. P. C., but virtually put an end, also, to the appeal, alleged to have been filed by the petitioner. The order not only decided a vital point but terminated the proceedings between the parties. After the order, the proceedings were not kept alive to be determined in the ordinary way. It is, therefore, to be held that the order of this Court was a final order, within the meaning of Article 133 (1).
11. The rulings, cited by the learned counsel for the respondent, are distinguishable, on facts. In AIR 1961 SC 794 (supra), the High Court had set aside the decision of the trial Court and had remanded the cases, under Section 151, C. P. C., without recording any finding on the rights of the parties. In these circum-stances, it was held that as the order of the High Court did not decide any point and the cases were kept alive after the order, the order was not a final order. In the present case, as already stated, the order of this Court, dated the 8th January 1966, not only decided the application of the petitioner, under Section 151, C. P. C., but virtually put an end to the appeal also and the proceedings were not kept alive.
The appeal in AIR 1949 FC 1, supra, had arisen out of a criminal case. The trial Court had overruled the objections of the appellant against the launching of the prosecution against him and had ordered that the prosecution would proceed. A revision-petition against the order of the trial Court was dismissed by the High Court. It was held, by the Federal Court, that the order of the High Court was not a final order. It is to be noted that the order of the High Court did not decide any point regarding merits of the case. The criminal case, pending against the appellant, was not disposed of one way or the other but was to be proceeded with before the trial Court.
The facts, in Mohammad Amin Brothers Ltd. v. Dominion of India, AIR 1950 FC 77, were that the Company had been assessed to income-tax and other taxes, aggregating to more than rupees thirty-five lakhs. The Company had filed several appeals against the assessment orders to the Income-tax Appellate Tribunal. The Dominion of India, which claimed the sum of taxes, assessed from the Company, presented an application, on the Original Side of the High Court of Calcutta, for compulsory winding up of the Company. The application was allowed. The Company went up in appeal to the Bench of the High Court. The Bench set aside the order of the compulsory winding up of the company and directed that the application for winding up be kept on the file, to be taken up for hearing after the final determination of the appeals filed by the Company. An objection was taken up, before the Federal Court, that the order of the Bench was not final within the meaning of Section 205 of the Government of India Act. The objection was upheld. The order of the Bench did not decide any point between the parties. After the order, the application of the Dominion of India was kept pending.
The facts, in Savitri Devi v. Rajul Devi, AIR 1961 All 245 (FB), were that the applicant had filed a suit against the respondents for the recovery of Rs. 1,39,000 due on a promissory note. The trial Court ordered to be recorded a compromise arrived at between the parties and passed a decree in terms of the compromise. On an appeal to the High Court, the order recording the compromise was set aside and the suit was remanded to the trial Court for disposal in the ordinary way. The order remanding the suit was held not to be a final order within Article 133 (1) of the Constitution. The order had not decided any point on merit. The proceedings were kept alive to be disposed of in the ordinary way.
In Gajjan Mal Mohan Lall v. State of Himachal Pradesh, AIR 1957 Him Pra 5, the order of this Court had not decided any of the rights of the parties, nor it had put an end to the litigation. This Court had dismissed the petition, holding that the proper course for the petitioner was to deposit the amount to be recovered under protest and then to institute a suit in the civil Court for the recovery of the amount. The facts, in M. A. Janaki v. M. A. Srirangammal, AIR 1953 Mad 38, were that an appeal of the petitioner was dismissed for default of appearance. The petitioner, then, filed an application for restoration of the appeal. That application was also dismissed. The petitioner applied for a certificate for appeal to the Supreme Court against the order dismissing the application for restoration. The application was dismissed.
The following observations, made by their Lordships, bring out the distinction between that case and the present case:--
'It is clear that we could not have certified that the petitioner was entitled to appeal to the Supreme Court against the judgment and decree in the main appeal, because that was an affirming judgment and obviously the appeal did not involve any substantial question of law. The grounds which are now sought to be urged against our later order are all grounds which could have been urged in the appeal against the judgment in the main appeal. If the petitioner as we have just held, was not entitled to leave to appeal to the Supreme Court against the judgment in the appeal, we fail to see how she can be allowed to get the same relief by this indirect method'. (Page 39)
12. The facts, in H. Chandanmull and Co. v. Mohanlal M. Mehta, AIR 1953 Mad 727, were that an ex parte award was passed in favour of the third respondent and against the petitioner. The award was filed in the High Court with a prayer for making the award a rule of the Court. Notice of filing the award was served on the petitioner. But he did not file any application to set aside the award within thirty days. The petitioner filed an application, purporting to be under S. 5, Limitation Act, for excusing the delay in filing the application to set aside the award. That application was dismissed on the ground that S. 5, Limitation Act did not apply. An appeal against the order of dismissal was also dismissed. The petitioner sought a certificate for appeal to the Supreme Court against the order dismissing the appeal. It was held that the order was not a final order as it did not decide any rights between the parties. Their Lordships had observed that the dismissal of the petitioner's application had left the original petition for making the award, the rule of the Court, alive. In the present case, the original appeal has not been kept alive. In Jagat Ram v. Ganga, AIR 1951 Punj 30, an order rejecting an application to appeal in forma pauperis was held not to be a final order. The order, rejecting the application, did not dispose of theappeal finally. The applicant could have paid court-fees on appeal and got a decision of merits.
13. The order, rejecting the application of the petitioner, for reconstruction of the record of the appeal, was a final order. The order involves a question relating to an amount of more than rupees twenty thousand. The petitioner is entitled to get a certificate that the case is a fit one for appeal to the Supreme Court under Clause (b) of Article 133 (1) of the Constitution.
14. The petition is allowed. It is certified, under Clause (b) of Article 133 (1) of the Constitution, that the case is a fit one for appeal to the Supreme Court. In the circumstances of the case, the parties, will bear their own costs of the petition.