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Piyare Lal Khanna Vs. the Financial Commissioner - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberSupreme Court Appln. No. 4 of 1971
Judge
Reported inAIR1973HP50
ActsConstitution of India - Articles 133(1) and 226
AppellantPiyare Lal Khanna
RespondentThe Financial Commissioner
Appellant Advocate S. Malhotra and; H.K. Bharadwaj, Advs.
Respondent Advocate B. Sitaram, Adv. General,; A.C. Sood,; K.D. Sood and
DispositionPetition dismissed
Cases ReferredUnion of India v. Gopal Singh.
Excerpt:
- .....and the decision of the high court dismissing the writ petition amounted to an adjudication on the merits the high court erred in treating the petition for certificate as not maintainable. another case cited before us is prakash chand agarwal v. hindustan steel ltd. air 1971 sc 2319. in that case the supreme court held that an order made by the high court restoring a suit was not a judgment. decree or final order within the meaning of article 133 (1) of the constitution. both asbestos cement ltd. (supra) and prakash chand agarwal (supra) were considered by us in h. s. bedi v. sm. phanni sca no. 11 of 1971 d/- 18-4-1972 (reported in air 1973 him. pra. 47) 'where after referring to a number of cases on the point we held that an order made by this court under section 15 (5) of the east.....
Judgment:

R.S. Pathak, C.J.

1. The petitioner applies for certificates under Sub-clauses (a) and (c) of Clause (1) of Article 133 of the Constitution.

2. The petitioner owed a sum of money to the Bank of Patiala and in recovery proceedings attachment was effected to two properties at Simla, they being house No. 18. The Mall, and Sunny Bank Estate. An objection by the petitioner to the attachment was rejected. The properties were sold by auction on October 15, 1966 and purchased by respondents nos. 5 and 6 for Rs. 96 000 and Rs. 61,000 respectively. The sale was confirmed by the Commissioner, and, a revision petition against his order was dismissed by the Financial Commissioner. Thereafter, Civil Writ Petition No. 45 of 1970 was filed against the aforesaid orders. When the writ Petition come on for admission, after notice to the respondents it appears that counsel for the petitioner stated that his client would file a suit and prayed for permission to withdraw the writ petition. Accordingly, an order dated August 14, 1970 was made by the Court granting permission to withdraw the writ petition. Thereafter, Civil Writ Petition No. 90 of 1971, out of which the present proceeding arises was filed. It was directed against the same orders as were questioned in the earlier writ petition. On August 9, 1971, a Division Bench of this Court consisting of M. H. Bee, C. J. and C.R. Thakur, J. passed the following order:

'Paragraph 21 of this petition shows that a writ petition was filed by the petitioner and dismissed as withdrawn as the petitioner wanted to file a Civil Suit. That writ petition No. 45 of 1970 was withdrawn on 14-8-1970. It has been submitted that the writ petition filed on 24-5-1971 is based on fresh grounds. It appears that the matter has already been to the Supreme Court and the grounds mentioned now are not new. This writ petition is therefore, dismissed.'

3. The present petition under Article 133 (1) of the Constitution has been made in respect of this order.

4. A preliminary objection has been raised by the respondents that the impugned order does not amount to 'a judgment, decree or final order' within the meaning of Article 133 (1) of the Constitution, We have heard learned counsel for the parties and we are of opinion that the preliminary objection must be upheld.

5. From the terms of the impugned order it is clear that the Division Bench had in mind that an earlier writ petition had been filed and then withdrawn and that the second writ petition was filed on the same grounds. The Division Bench also referred to the circumstance that the matter had been to the Supreme Court. Upon those considerations, the Division Bench dismissed the second writ petition. It is apparent that the Division Bench took the view that the matter had already been the subject of an earlier proceeding and that the second writ petition was not brought on any new grounds and therefore they should not entertain the subsequent writ petition. They declined to go into the merits of the second writ petition and dismissed it in limine. The dismissal was on the ground that the writ petition should not be entertained, and not on the ground that it was without substance on the merits. For the purpose of the preliminary objection under consideration, it is immaterial whether the reasons which prevailed with the Division Bench for not entertaining the writ petition are right or wrong. What is material is that there was no adjudication on the merits of the dispute between the parties.

6. It is urged by learned counsel for the petitioner that the dismissal of the second writ petition results in concluding the dispute between the parties and therefore, he says, the effect is that the dispute no longer remains pending. It seems to us that for deciding whether a judgment, decree or final order falls within Article 133 (1) of the Constitution what the Court must see is whether It amounts to an adjudication on the merits of the dispute or leaves the dispute undecided. It must be remembered that the dispute which is relevant for this purpose is the dispute raised in the writ petition. The writ petition is a proceeding generally independent of the original controversy which has culminated in the judgment or order now brought before the High Court. The powers exercised by the High Court under Article 226 of the Constitution, in cases where certiorari or prohibition are claimed, are employed merely for the purpose of examining whether the impugned proceeding or order is without jurisdiction, vitiated by a manifest error of law or is contrary to natural justice. The High Court does not exercise an appellate or revisional jurisdiction under Article 226 of the Constitution, and it has no power to make an order substituting for and replacing the order of the inferior authority or the subordinate court. By certiorari it either quashes the order or refuses to interfere with it. If it quashes the order then, in appropriate cases, it is for the authority or the court which made the order to pass a fresh order to dispose of the proceeding which, as a result of the quashing of the original order, must be considered to have become pending again. Under . Article 226 of the Constitution, the High Court may decline to interfere with the impugned order on the merits that is to say on the ground that it is not without jurisdiction or not vitiated by a manifest illegality or not contrary to natural justice. The High Court may also, without going into the merits, decline to interfere on the ground that the Petitioner is guilty of laches or because an alternative remedy is available to him. When it does so, it does not adjudicate on the merits of the dispute but, as it were, ignores the dispute and dismisses the writ petition on grounds not touching its merits. In that event the order dismissing the writ petition cannot be said to be a judgment, decree or final order within the meaning of Article 133 (1) of the Constitution.

7. The law in this regard was laid down by the Supreme Court in Ramesh v. Gendalal Motilal Patni, AIR 1966 SC 1445 when Hidayatullah J. observed:

'We are concerned here with the exercise of extraordinary original civil jurisdiction, under Article 226. Under that jurisdiction. the High Court does not hear an appeal or revision. The High Court is moved to intervene and to bring before itself the record of a case decided by or pending before a Court or tribunal or any authority within the High Court's jurisdiction. A petition to the High Court invoking this jurisdiction is a proceeding Quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before a court or tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record. A decision in the exercise of this jurisdiction. whether interfering with the proceeding impugned or declining to do so is a final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it. But it is not to be taken that any order will be a final order. There are orders and orders. The question will always arise what has the High Court decided and what is the effect of the order. If for example, the High Court declines to interfere because all the remedies open under the law are not exhausted, the order of the High Court may not possess that finality which the article contemplates. But the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does not. In either case the controversy in the High Court is finally decided. To judge whether the order is final in that sense it is not always necessary to correlate the decision in every case with the facts in controversy especially where the question is one of jurisdiction of the Court or tribunal. The answer to the question whether the order is final or not will not depend whether the controversy is finally over but whether the controversy raised before the High Court is finally over or not. If is the order will be appealable provided the other conditions are satisfied, otherwise not.'

Learned counsel for the petitioner relies on Asbestos Cement Ltd. v. P. D. Sawarkar. AIR 1971 SC 100. In that case, however, an industrial dispute composed of separate and distinct disputes in respect of a number of matters was referred for adjudication to a Board of Arbitrators. The Board of Arbitrators made an award in respect of one of the disputes, deciding to deal with the rest of the disputes later. The award was challenged by a writ petition under Article 226 of the Constitution in the Bombay High Court. It was dismissed. An application for a certificate to enable the aggrieved party to appeal to the Supreme Court was held by the High Court not to be maintainable. On appeal to the Supreme Court by special leave, the Supreme Court held that as the award disposed of finally one of the matters in controversy between the parties, and the decision of the High Court dismissing the writ petition amounted to an adjudication on the merits the High Court erred in treating the petition for certificate as not maintainable. Another case cited before us is Prakash Chand Agarwal v. Hindustan Steel Ltd. AIR 1971 SC 2319. In that case the Supreme Court held that an order made by the High Court restoring a suit was not a judgment. decree or final order within the meaning of Article 133 (1) of the Constitution. Both Asbestos Cement Ltd. (supra) and Prakash Chand Agarwal (supra) were considered by us in H. S. Bedi v. Sm. phanni SCA No. 11 of 1971 D/- 18-4-1972 (reported in AIR 1973 Him. Pra. 47) 'where after referring to a number of cases on the point we held that an order made by this Court under Section 15 (5) of the East Punjab Rent Restriction Act. 1949 remanding the case to the Controller for fresh decision was not an order within the contemplation of Article 133 (1) of the Constitution.

8. Learned counsel for the petitioner points out that what the impugned order of August 9. 1971 has decided is that where a writ petition is brought on the same grounds as an earlier writ petition it should not be entertained. That is a question. he says which was raised between the parties in the writ petition and which was decided by the Division Bench and therefore an appeal lies under Article 133 (1). No doubt, the order made by the Division Bench was an order deciding a dispute between the parties. The order was passed in the presence of counsel for all the parties. But it was not a decision on the merits of the dispute which was the subject-matter of the writ petition, and therefore, in our opinion, it does not fall within the scope of Article 133 (1) of the Constitution.

9. The refusal of the Court to entertain a second writ petition on the same grounds as an earlier writ petition is based on sound practice. In the Queen v. Mayor and Justices of Bodmin. (1892) 2 QB 21 reference was made to this practice with approval. Indeed, there is a long line of cases in England in support of the practice and it seems to me a rule which commends itself for its soundness in writ petitions filed in this country also. The rule was followed by a Division Bench of the Punjab High Court in Kirpal Singh v. Union of India, (1965) 67 Pun LR 862 and again by a Full Bench of that High Court in Bansi v. Addl. Director Consolidation of Holdings. 68 Pun LR 652 = (AIR 1967 Punj 28).

10. Learned counsel for the petitioner urges that the refusal of the Division Bench to entertain the second writ petition can be referred only to the principle of res judicata and. he says, an order dismissing a writ petition on the ground of res judicata would be an order under Article 133 (1) of the Constitution. I am unable to agree upon the facts of the present case. There was never any decision on the merits here. Besides, as the Calcutta High Court, in H. I. Trust Ltd. v. Haridas Mundhra 75 Cal WN 517 -= (AIR 1971 Cal 182) has observed:

'The finality of an order contemplated by Article 133 of the Constitution has nothing to do with the question of res judicata. because although an order may not be a final order for the purpose of Article 133 of the Constitution, yet it may operate by way of res judicata or principles analogous thereto on the ground that the Questions sought to be agitated in a later proceeding have either been decided in the earlier proceeding or ought to have been so decided.'

For that reason also we are of opinion that the decision of the Supreme Court in Sheodan Singh v. Daryao Kanwar AIR 1966 SC 1332 and in Daryao v. State of U. P. AIR 1961 SC 1457 does not help the petitioner.

Learned counsel for the Petitioner has referred us to Hungerford I Trust v. H. Mundhra. (1970) 75 Cal WN 955 where the Calcutta High Court held. on a petition for a certificate under Article 133 (1) of the Constitution that an application for rescission of a contract, a proceeding related to but subsequent to the decree in a suit, stood finally disposed of even though it was disposed of on the ground that it was not maintainable. In that case, it is clear that the application was an independent proceeding distinct from the suit, which had earlier been terminated by a decree and when the application was dismissed on the ground that it was not maintainable the entire proceeding constituted by the application stood finallly disposed of. In the end, reference may be made to Union of India v. Gopal Singh. (1967) 2 SCWR 639. In that case .the Supreme Court held that an order holding that one Dr. Gopal Singh was the sole Proprietor of M/s. Gopal Singh and Sons and rejecting the application of the Union of India to revoke the validity of the appointment of the Arbitrator could not be treated as 'final' within the meaning of Article 133 (11 of the Constitution as the order did not finally dispose of the rights of the parties in relation to the dispute. The dispute between the parties related to claims for damages for breach of contract, and no part of the dispute had been adjudicated upon by the impugned order.

11. In my judgment, the order dated August 9. 1P71 made by the Division Bench refusing to entertain Civil writ petition No. 90 of 1971 is not an order on the merits of the dispute embodied in that writ petition and. therefore, it is not a Judgment, decree or final order' within the contemplation of Article 133 (1) of the Constitution.

12. In the circumstances, it is not necessary to consider whether the petitioner is entitled to a certificate of valuation under Sub-clause (a) or of fitness for appeal under Sub-clause (c) of Clause (1) of Article 133 of the Constitution.

13. The petition is not maintainable and is rejected.

C.R. Thakur, J.

14. I agree.


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