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Union of India (Uoi) Vs. Himachal Shoddy Mills Ltd. - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberSupreme Court Appeal No. 23 of 1975
Reported inAIR1976HP54
ActsConstitution of India - Article 133(1)
AppellantUnion of India (Uoi)
RespondentHimachal Shoddy Mills Ltd.
Appellant Advocate B. Sita Ram, Adv. General
Respondent Advocate Hardyal Hardy,; B. Dutta and; Inder Singh, Advs.
DispositionPetition rejected
Cases ReferredH.S. Bedi v. Smt. Dhanni Devi
- .....view and held that in a case where no final order is passed and only an interlocutory order is granted a certificate of fitness cannot be granted under article 133.3. in reply, the learned advocate-general relied on several cases of which the reports are jai hind iron mart v. tulsiram bhagwandas (air 1953 bom 117), mansata film distributors, calcutta v. sorab merwanji modi (air 1955 bom 266), s. govind swaminathan, in re, (air 1955 mad 121), shorab merwanji modi v. mansata film distributors (air 1957 cal 727), kuppa viswapathi v. kuppa venkata krishna sastry (air 1963 andh pra 9), l. c. t. l. p. l. palaniappa chettiar v. m.r. krishnamurthi chetty (air 1968 mad 1) (fb) and state of kerala v. annam (air 1969 ker 38). all these cases referred to letters patent appeals. as noticed in l......

D.B. Lal, J.

1. This is an application on behalf of the respondents wherein they have sought for a certificate of fitness for appeal to Supreme Court under Article 133 (1) of the Constitution. Brief facts of the case from which the present application emerges may now be stated. Messrs. Himachal Shoddy Mills Limited filed a writ petition against the Union of India, the Textile Commissioner, and the State Trading Corporation, wherein they called upon the respondents not to withhold the allocation of unserviced raw material to which the petitioners were entitled. It is to be recalled that by an order made by the respondents the allocation of unserviced law material was suspended to the petitioners, with the consequence that the mill was likely to be closed. The main contention of the petitioners was that the statutory provision was not observed while suspending the raw material and that a principle of natural justice was involved because neither a show cause notice was given nor the petitioners were heard otherwise before the suspension order was made. Along with the writ petition a prayer was made for interim order so that the respondents release the imserviced raw material which already stood allocated in the name of the petitioners, An ex parte order was made staying the operation of the order suspending the allocation of raw material. This order was subsequently confirmed by a detailed judgment of my brother Thakur, J. on June 16, 1975. One of the contentions of the res-pondents was that the Court had no jurisdiction because the offices of the respondents fall outside its territorial limits and hence no relief could be granted to the petitioners. In reply, the petitioners submitted that the cause of action arose within the territorial jurisdiction of the Court and also sought amendment for elucidation and elaboration of the plea regarding jurisdiction. These amendments were allowed by the learned Judge and, despite the objections of the learned Advocate-General that an amendment conferring jurisdiction could not be allowed, it was held that the amendments sought for were merely by way of elaboration or elucidation of the plea and that the Court basically and initially possessed jurisdiction and the plea only required to be clarified and so the amendments were necessary. However, the learned Judge held that the question regarding jurisdiction will again be open at the stage of the decision of the main petition. After this order of the learned Judge confirming the previous ex parte stay order, a fresh need arose for allocation of raw material, and another application CMP. No. 1303 of 1975 was filed by the petitioners for an additional relief as according to them the abeyance order although stayed was being rendered ineffective by the respondents because they had cut short the raw material for no rhyme or reason, with the result that the mills were likely to be closed and the workers were likely to suffer unemployment. It was, however, contended by the respondents that the petitioners have misutilized the raw material. This Court made another interim order on December 20, 1975 on CMP. No. 1303 of 1975 holding that a prima facie case existed in favour of the petitioners, that the balance of convenience was in their favour and that irreparable injury was likely to cause if some order is not made releasing unserviced raw material to the petitioners. Regarding the amendments allowed by the learned Judge, it was observed that the same were correctly allowed by way of elucidation of the plea regarding jurisdiction. At any rate, the order allowing amendments was not disturbed by any subsequent proceeding. It is a different matter that the respondents have been given opportunity to agitate the plea regarding jurisdiction while the main writ petition comes up for decision. It is evident the question of jurisdiction embraces two separate facets: (1) Whether the amendment conferring jurisdiction, could be allowed although according to petitioners this was never done but the initial jurisdiction was there and the plea was only elucidated and elaborated at a subsequent stage, and (2) whether once the amendments were allowed the plea of jurisdiction was, at all amenable to the respondents. For this, the learned Advocate-General categorically stated that in case the amendments are not set aside but retained, the facts alleged will definitely confer jurisdiction upon the Court. These two questions, in my opinion, in view of the order of my learned brother Thakur, J., dated June 16, 1975 will still be open to the respondents. After all a prima facie finding as to title has been given in favour of the petitioners. They have yet to prove their case both on question of law and even on question of fact. The oft repeated considerations which prevail upon the Court to grant interim relief, namely prima facie case, balance of convenience and irreparable loss, have been considered and interim relief has been granted to the petitioners although according to respondents the interim relief is sufficiently material for the purpose of the case. At the same time it is already ordered by the Court that what ever imserviced raw material has been allocated the same shall stand adjusted in future allocations provided the petitioners are found eligible for the same. In fact the Court found that so much quantity of un-serviced raw material was already allocated by the respondents to the petitioners and it was merely held back on grounds considered tentatively insufficient by the Court. In case the sufficiency of the grounds is established while deciding the main writ petition, the petitioners would naturally not be entitled to the unserviced raw material and the same will have to be adjusted in their subsequent allocations. It is stated that the petitioners are to he debarred from doing business or that their mill is to be closed under the orders of the respondents. But for that, some proceedings under law are required to be taken up. It is evident the respondents have not yet initiated those proceedings,

2. Therefore, the argument of the learned Advocate-General that practically the relief has been granted to the petitioners is neither here nor there. Some interim relief, in the opinion of the Court, was required to be given and the same has been granted. The main relief will, of course, be given in case the writ petition is allowed in favour of the petitioners. The main ground of the learned Advocate-General on the basis of which he has sought for a certificate of fitness is the question regarding jurisdiction. I have already observed above that the question regarding jurisdiction in both aspects mentioned above is still open to the respondents which they can agitate at the time of the hearing of the main writ petition. Only a tentative finding has been given in favour of the petitioners which was essential to grant them the interim relief. That apart, in my opinion, the order being interlocutory and the Court having not decided the dispute or having not finally determined the points in controversy, the order can neither be considered 'judgment' nor 'decree' nor 'final order' within the meaning of Article 133 (1). For this, there is ample authority in support of the view. In Sardar Syedna Taher Saffuddin Saheb v. State of Bombay (1958 SCR 1007) = (AIR 1958 SC 253) the question regarding vires of an Act was involved and an interlocutory finding was given. The Supreme Court held that the certificate under Article 133 was incompetent as it could not be granted in respect of an interlocutory finding. This authority is an answer to the argument of the learned Advocate-General that the question regarding jurisdiction touches at the root of the case and hence is of primary importance. According to the learned counsel, a certificate of fitness be granted because a very primary question arising in the case is involved and calls for a decision by the Supreme Court. As I have said above, the question regarding vires of an Act was nonetheless of primary importance, still the Supreme Court did not grant a certificate of fitness as the order was interlocutory. In Jethanand and Sons v. State of Uttar Pradesh (AIR 1961 SC 794) the Supreme Court refused to grant a certificate of fitness because the appeal was being preferred against the order, refusing to set aside award and of remand of the case for de novo trial. It was held that the certificate of fitness cannot be granted against such an order which could neither be considered judgment nor decree nor final order within the meaning of Article 133. In Tarapore and Co., Madras v. V/o. Tractors Export, Moscow (AIR 1970 SC 1168) again the Supreme Court reiterated its previous view, and held that the judgment in the context of Article 133 (1) means final adjudication by Court of rights of parties. Interlocutory judgments even if they decide an issue or issues, do not finally determine rights and liabilities between parties and hence they are not judgments although the issue which they decide may be cardinal in the case. It was held that interlocutory orders passed without finally determining the rights and obligations of the parties are not covered under Article 133 (1) and hence no certificate of fitness can be granted. Finally, in Ajantha Transports (P) Ltd., Coimbatore v. T. V. K. Transports, Pulampatti, Coimbatore District, etc. (1975) 1 SCC 55 = (AIR 1975 SC 123) yet again the Supreme Court took the same view and held that in a case where no final order is passed and only an interlocutory order is granted a certificate of fitness cannot be granted under Article 133.

3. In reply, the learned Advocate-General relied on several cases of which the reports are Jai Hind Iron Mart v. Tulsiram Bhagwandas (AIR 1953 Bom 117), Mansata Film Distributors, Calcutta v. Sorab Merwanji Modi (AIR 1955 Bom 266), S. Govind Swaminathan, In re, (AIR 1955 Mad 121), Shorab Merwanji Modi v. Mansata Film Distributors (AIR 1957 Cal 727), Kuppa Viswapathi v. Kuppa Venkata Krishna Sastry (AIR 1963 Andh Pra 9), L. C. T. L. P. L. Palaniappa Chettiar v. M.R. Krishnamurthi Chetty (AIR 1968 Mad 1) (FB) and State of Kerala v. Annam (AIR 1969 Ker 38). All these cases referred to Letters Patent appeals. As noticed in L. C. T. L. P. L. Palaniappa Chettiar (supra), there is a clear distinction between intra-court appeals and appeals preferred to Supreme Court. Letters Patent appeals are intra-court appeals from one Judge to another Bench of Judges of the same court. In this category of cases, even interlocutory orders which do not finally determine the dispute are held to be 'judgment' if appealed under Letters Patent. Their Lordships have observed that the considerations which determine the appeala-bility from the High Court to the Federal Court or the Supreme Court cannot apply to an appeal from one Judge of the High Court to a Bench under Clause 15 (Madras Letters Patent). The latter is an internal or domestic matter where an appeal will lie even where there is no final and ultimate disposal of the suit as required for an appeal to the Federal Court or the Supreme Court. A similar view was expressed in Kuppa Viswapathi (supra). Their Lordships observed that in order to constitute a 'judgment' within the ambit of clause 15 (Andhra Pradesh Letters Patent), it is not essential that the decision should wholly put an end to the litigation, and it need not possess the attributes of a final order, as contemplated by Section 109 C. P. C. or Article 133 of the Constitution. If a decision effectively disposes of a suit or proceeding, it is a 'judgment' within the purview of clause 15. So, in the very cases relied upon by the learned Advocate-General the distinction has been noted and for a certificate under Article 133 a judgment, decree or final order is required, which can only be when nothing is left out in the case to be determined. An interlocutory order decidedly does not settle the controversy on all questions in dispute and leaves the case pending between the parties. In the instant case as well the interim relief has been granted to the petitioners but the Us is still pending. The points in controversy have yet to be determined and the question regarding jurisdiction is also left open. As such there is ample authority in support of the view that no certificate can legally be granted against such an order made by the Court. This appears to be the view even of this Court as held by a Division Bench in H.S. Bedi v. Smt. Dhanni Devi (ILR (1972) H. P. 10) = (AIR 1973 Him Pra 47). It was held by a Division Bench that a judgment or order as contemplated under Article 133 (1) is the one which completely adjudicates the rights in dispute between the parties and if after the judgment or order the dispute still remains to be tried and the rights of the parties remain to be determined, the judgment or order is not final for the purpose of Article 133.

4. In this view of the matter, the order made by this Court in respect of which the present application is directed can neither be considered judgment, nor decree nor final order, and hence a certificate of fitness under Article 133 (1) cannot be granted. The application is, therefore, rejected.

C.R. Thakur, J.

I agree.

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