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H.S. Bedi Vs. Smt. Dhanni Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtHimachal Pradesh High Court
Decided On
Case NumberS.C. Appeal No. 11 of 1971
Judge
Reported inAIR1973HP47
ActsConstitution of India - Article 133 and 133(1); ;East Punjab Rent Restriction Act, 1949 - Section 13(3)
AppellantH.S. Bedi
RespondentSmt. Dhanni Devi and anr.
Appellant Advocate Inder Singh, Adv.
Respondent Advocate S. Malhotra, Adv.
Cases ReferredPulavarti Venkatasubba Rao v. Jagannadha Rao
Excerpt:
- .....in a suit. it was contended that the suit had been finally disposed of in the meanwhile by a final decree and it was no longer open to the appellants to maintain the appeal. the contention was reiected. it will be noticed that so far as the code of civil procedure is concerned it recognises that in certain cases a dispute may be resolved by a preliminary decree followed by a final decree. the preliminary decree decides the rights of the parties, while final decree gives effect to that adjudication. such a case is plainly distinguishable from the case before us. 10. reliance was also placed on lachhman dass v. the puniab state. 1971 punj lr 460 = (air 1972 punj 112 fb). but there, it is clear the writ petition filed before the high court was disposed of on the merits, and none of.....
Judgment:

R.S. Pathak, C.J.

1. This is a petition praying for certificates under Sub-clauses (b) and (c) of Clause (1) of Art, 133 of the Constitution.

2. The premises described as Shop No. 50. The Mall. Simla, consist partly of residential accommodation and partly of commercial accommodation. The en-tire premises were let out by the first Respondent Dhanni Devi to the second Respondent Krishan Kumar, and it appears that thereafter Krishan Kumar occupied the commercial portion of the accommodation only and sub-let the residential portion to the petitioner. An application was made by Dhanni Devi for the ejectment of the petitioner and Krishan Kumar on the ground that Krishan Kumar had sub-let the accommodation to the petitioner without her permission. The application was reject-ed on the finding that the sub-letting had been effected with her permission. Thereafter an application was made by Dhanni Devi under Section 13 (3) (a) (i) of the East Punjab Rent Restriction Act, 1949. She claimed possession of the residential portion of the accommodation on the ground that she required it for her own occupation. A question arose whether such an application would lie inasmuch as the landlady was thereby attempting to split the tenancy. The Rent Controller answered that question in the negative, and the Appellate Authority endorsed his view. Dhanni Devi applied in revision under Section 15 (5) of the Act to this Court and by its judgment dated August 6, 1971. a Division Bench reversed the decision of the inferior authorities and held that the application was maintainable even though it was in respect of the residential por-tion of the accommodation only. The learned Judges remanded the case to the Controller for determining whether the requirements of Dhanni Devi were genuine and the conditions of Section 13 (3) (a) (i) of the Act were satisfied. The petitioner now prays for the certificates mentioned above.

3. A preliminary objection has been raised by learned counsel for Dhanni Devi. It is urged that the petition is not maintainable inasmuch as the judgment of this Court does not amount to a 'Judgment, decree or final order' within the meaning of Article 133 (1) of the Constitution, It is contended that the decision of this Court has merely dis-posed of one of the issues which arises in the case and has left the dispute between the parties on the merits unresolved and that it cannot be said that the rights of the parties have been adjudicated by this Court. After hearing learned counsel for the parties, we are of opinion that the preliminary objection should prevail.

4. It is now settled law that 3judgment or order is final if it amountsto a complete adjudication of the rightsof the parties in dispute, but that ifafter the judgment or order the disputestill remains to be tried and the rightsof the parties remain to be determined,the judgment or order is not final forthe purposes of Article 133. In Jethanand & Sons v. State of Uttar Pradesh,AIR 1961 SC 794 the High Court hadallowed an appeal and remanded thecase for de novo trial holding that therewas no proper trial of the petition. TheSupreme Court held that the order ofremand was not a final order within themeaning of Article 133 (1) of the Constitution. A similar view was taken inMohanlal Maganlal Thakkar v. State ofGujarat. AIR 1968 SC 733 where it washeld that where the order of the HighCourt did not involve the determinationof the merits of the case or of the guiltor innocence of the appellant, any decision rendered by it was merely interlocutory in nature and the matter wouldnot fall within the scope of Article 134 (1)of the Constitution. The scope of Article 133 (1) was considered recently bythe Supreme Court in Tarapore &Co. Madras v. Tractors Exports Moscow,AIR 1970 SC 1168 and the SupremeCourt again declared that if after theorder under appeal the suit or proceedings still remain to be tried and therights in dispute remain to be determined, the order was merely interlocutory and Article 133 (1) of the Constitution would not be attracted. That viewwas reiterated in Prakash Chand Agarwal v. Hindustan Steel Ltd.. AIR1971 SC 2319.

5. For the petitioner, a large number of oases were placed before us. Reliance was placed on Asbestos Cement Ltd. v. P. D. Sawarkar. AIR 1971 SC 100. In that case, an industrial dispute was referred for adjudication to a Board of Arbitrators. In fact, if, was a composite reference because it embraced a number of separate and distinct disputes. The Board of Arbitrators made an award in respect of one of them, namely, dearness allowance. Aggrieved by the award the employer filed a writ petition in the Bombay High Court, and the High Court dismissed the writ petition on the merits. Thereafter the employer applied for a certificate under Article 133 (1) of the Constitution to enable it to appeal to theSupreme Court and an objection was raised that the petition was not maintainable inasmuch as after deciding the writ petition, the High Court had left it open to the Board of Arbitrators to dispose of the remaining disputes covered by the reference. The objection was overruled by the Supreme Court. It held that so far as the dispute relating to dearness allowance was concerned, there was nothing left to be done by the Board of Arbitrators and the matter had been finally considered by the High Court upon the writ petition filed before it. The Supreme Court observed;

'The award, therefore, was not an interlocutory order in the sense of any dispute in respect of its subject-matter remaining to be finally adjudicated by the arbitrators or the rights of Parties in relation thereto remaining pending any further determination. In this sense there can be no doubt that so far as the dispute as to dearness allowance was concerned, the arbitrators by the said Part-I Award finally adjudicated it and gave their decision leaving nothing to be adjudicated or decided upon at any subsequent stage of the arbitration.'

Plainly, the case before the Supreme Court is distinguishable from that before us. In the present case one of the issues alone was disposed of by the High Court, and the petition filed by Dhanni Devi remained to be disposed of on the merits.

6. Reliance was also placed by the petitioner upon the Full Bench decision of the Allahabad High Court in Raja Shatrunji v. Mohamed Azmat Azim Khan. AIR 1967 All 51- In that case a petition for a certificate under Article 133 (1) was made in respect of an order of the High Court allowing a review application and reducing the amount of the debt which was the subject of proceedings under the U. P. Encumbered Estates Act. The learned Judges took the view that the substantive rights of the Parties had been determined by the Hieh Court and all that remained for the Special Judge was to make the consequential computation of the actual amount of the debt.

7. In Ramesh v. Gendalal, AIR 1966 SC 1445 to which our attention has also been drawn, the determination by the Claims Commissioner was challenged in a writ petition before the Bombay High Court on the ground that the determination was in excess of the Jurisdiction of that authority. The High Court dismissed the petition, thereby affirming the exercise of jurisdiction by the Commissioner. An objection to the maintainability of a petition under Article 133 (1) was repelled by the Supreme Court in the view that the proceeding before theHigh Court had been finally disposed of. It is beyond dispute that a writ petition is an independent and distinct proceeding from that which gives rise to the order challenged in the writ petition.

8. Eeliance was also placed on Miss S. Sanval v. Gian Chand. AIR 1968 SC 438 but we do not find that the point decided in that case helps the petitioner.

9. In K. Manickchand v. Elias Saleh Mohamed Salt. AIR 1969 SC 751 the Supreme Court upheld the maintainability of an appeal before it arising out of a preliminary decree in a suit. It was contended that the suit had been finally disposed of in the meanwhile by a final decree and it was no longer open to the appellants to maintain the appeal. The contention was reiected. It will be noticed that so far as the Code of Civil Procedure is concerned it recognises that in certain cases a dispute may be resolved by a preliminary decree followed by a final decree. The preliminary decree decides the rights of the parties, while final decree gives effect to that adjudication. Such a case is plainly distinguishable from the case before us.

10. Reliance was also placed on Lachhman Dass v. The Puniab State. 1971 Punj LR 460 = (AIR 1972 Punj 112 FB). But there, it is clear the writ petition filed before the High Court was disposed of on the merits, and none of the disputes raised before the High Court remained to be decided.

11. Reference was also made on behalf of the petitioner to Shiromani Gurdwara Parbandhak Committee. Amritsar v. Raja Shiv Rattan Dev Singh. AIR 1955 SC 576. In that case it is true that upon the judgment of the High Court the case was remanded to the trial court but, as was pointed out by the Supreme Court, the entire dispute between the Parties before the High Court was disposed of by the High Court itself and all that remained to be done by the trial court was to pass a decree in terms of the order of the High Court.

12. That was also the position in M. Venkawa v. P. Venkatarama Rao AIR 1956 Andhra 126 where, relvine upon the aforesaid decision of the Supreme Court, the learned Judges held that the judgment of the High Court finally decided the rights of the parties and nothing remained to be decided thereafter upon remand by the trial Court.

13. We have also been referred to Ramji Davawahla and Sons v. Invest Import. AIR 1969 Cal 253 but nothing said by the Calcutta High Court in that case appears to support the petitioner.

14. Finally reliance was placed upon Pulavarti Venkatasubba Rao v. Jagannadha Rao AIR 1957 Andh Pra 538. But here again, the learned Judges of the Andhra Pradesh High Court Pointed out that no question remained to be decided after the judgment of the High Court, and what the subordinate Judge was left with upon remand was merely to pass a decree in terms of the judgment of the High Court.

15. We are not satisfied that the judgment or order of this Court which the petitioner proposes to take in appeal to the Supreme Court is a 'judgment or final order' within the meaning of Article 133 (1) of the Constitution.

16. Accordingly, the petition is rejected with costs.


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