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Case Number
Attorney(S)
  • Gopi Nath Kunzru
  • Jagdish Swarup
Judges
  • V. Bhargava
  • M.L Chaturvedi, JJ.
Acts
  • Article 133 of the Constitution or section 109(b) read with section 110 of the CPC
  • Article 133(1)(a) of Constitution and S. 109(b) read with Section 110 of the CPC.
  • Article 133 of the Constitution nor Sections 109 and 110 of the CPC
  • Article 133 of the Constitution or sections 109 and 110 of the CPC
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Gopi Nath Kunzru
  • Jagdish Swarup
Judges
  • V. Bhargava
  • M.L Chaturvedi, JJ.
Acts
  • Article 133 of the Constitution or section 109(b) read with section 110 of the CPC
  • Article 133(1)(a) of Constitution and S. 109(b) read with Section 110 of the CPC.
  • Article 133 of the Constitution nor Sections 109 and 110 of the CPC
  • Article 133 of the Constitution or sections 109 and 110 of the CPC
See more information ...
Smart Summary

Court Opinion Summary — Bhargava, J.

Factual and Procedural Background

This matter is an application for a certificate under Article 132 and Article 133 of the Constitution and Sections 109 and 110 of the Civil Procedure Code (CPC) in respect of an order passed by this Court on 28th February on a petition brought under Article 226 of the Constitution. The applicant sought a certificate enabling an appeal (or leave to appeal) to the Supreme Court under the cited constitutional and statutory provisions. The applicant argued entitlement to such certificate under Article 133(1)(a) and Section 109(b) read with Section 110 of the CPC. The opposite party contended that the impugned order was not a judgment, decree or final order and therefore Article 133 and Sections 109 and 110 did not apply. A further preliminary objection was that the proceedings in which the order was passed were not civil proceedings. The principal question for the Court was whether the order amounted to a "judgment, decree or final order" so as to permit the grant of the certificate. The application was ultimately dismissed with costs of Rs. 150 and the interim stay was vacated.

Legal Issues Presented

  1. Whether the order passed by this Court in the Article 226 petition amounts to a "judgment, decree or final order" for the purposes of Article 133 of the Constitution and Sections 109 and 110 of the CPC.
  2. Whether, if the order is not a judgment or final order, a certificate under Article 133 or Sections 109 and 110 CPC can be issued permitting appeal to the Supreme Court.
  3. Whether the proceedings in which the order was passed constituted "civil proceedings" for the purpose of Sections 109 and 110 CPC and Article 133 of the Constitution (preliminary objection).

Arguments of the Parties

Applicant's Arguments

  • The applicant contended that he was entitled to a certificate as of right under Article 133(1)(a) of the Constitution and Section 109(b) read with Section 110 of the CPC.
  • In the alternative, the applicant argued that the order passed by this Court at least affected or denied his right to obtain a writ from the High Court under Article 226, and therefore should be treated as a final order or judgment for the purpose of a certificate.

Opposite Party's Arguments

  • The opposite party submitted that the order in respect of which the certificate was sought was not a judgment, decree or final order passed by the Court; consequently, Article 133 of the Constitution and Sections 109 and 110 of the CPC did not apply.
  • There was also a preliminary contention that the proceedings in which the order was passed could not be held to be civil proceedings, and thus another reason why no certificate should be granted under Article 133 or Sections 109 and 110 CPC.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Vishnu Pratap v. Smt. Revati Devi, AIR 1953 All 647 Definition of "judgment": a judgment is an adjudication which conclusively determines the rights of the parties and is not a mere interlocutory order; not every order of a single Judge is a judgment. The Court relied on this authority to explain what constitutes a "judgment" when assessing whether the impugned order conclusively determined rights.
Mohammad Mahmood Hasan Khan v. Govt. of U.P., 1956 All LJ 679 : AIR 1956 All 457 (Full Bench) Three conditions for an order to be a "final order": (1) it should not be interlocutory; (2) it should not leave the original proceeding in the Court below alive; (3) there should be a final determination of the rights of the parties or the order must of its own force affect rights. The Court said it was bound to follow this Full Bench view and applied these three tests as the primary framework for deciding whether the impugned order was a final order.
Kuppuswami Rao v. The King, AIR 1949 FC 1 To be a final order it must finally determine the points in dispute and bring the case to an end. The Court cited this Federal Court authority as stating a similar principle; it supported the Full Bench rule and the consensus of authorities the Court followed.
Dhanalakshmi Ammal v. The Income-tax Officer, AIR 1958 Mad 151 (1957-2 Mad LJ 567) Interpretation of "final order" by the Madras High Court; an order under Article 226 will be final if it finally disposes of the rights of parties; if an order leaves the property right open to be agitated in appropriate proceedings, it is not final. The Court referenced this decision as another authority interpreting "final order" consistently with the Full Bench approach.
Kapur Singh v. Union of India, AIR 1957 Punj 173 Whether an order under Article 226 is a final order depends on whether the rights of the parties are finally determined by the decision; refusal of a writ may or may not be a final order depending on facts and nature of decision. The Court used this authority to illustrate that the classification depends on the effect of the decision in each case, supporting a fact-specific inquiry.
Allen Berry & Co. Ltd. v. Income-tax Officer, Patna, AIR 1956 Pat 175 Division Bench of Patna High Court took the view that summary dismissals of writ applications amounted to final orders (and certificates were refused on another ground: not civil proceedings). The Court noted this as a differing, solitary view that runs counter to the consensus; it treated it as not aligning with the Full Bench principle it followed.
Asiatic Engineering Co. v. Achhru Ram, AIR 1951 All 746 Article 226 confers discretionary power to issue writs; no party has an absolute right to any form of order as a matter of course; discretion is judicial. The Court relied on this precedent to reject the applicant's alternative contention that the impugned order deprived him of a legal right to obtain a writ under Article 226.
Etah v. Asharfi Lal (Rent Control & Eviction Officer, Etah v. Asharfi Lal), AIR 1958 All 153 In the Rent Control context, the Court held that a person who is an interested party under the rules was appropriate to move the High Court under Article 226; this does not create a legal right to a writ as of course. The Court considered this case and interpreted it as not establishing a general legal right to a writ under Article 226 but merely recognizing who is an appropriate person to move the Court; it did not undermine the Full Bench view invoked.

Court's Reasoning and Analysis

The Court proceeded in structured steps grounded on prior authorities:

  1. The Court first examined whether the impugned order could be treated as a "judgment." It relied on the definition in Vishnu Pratap v. Smt. Revati Devi that a judgment must conclusively determine the rights of the parties and not be merely interlocutory. The Court observed that not every order passed by a single Judge is a judgment and that the determination is fact-dependent.
  2. The Court then considered whether the order could be a "final order." It adopted the threefold test stated by the Full Bench in Mohammad Mahmood Hasan Khan v. Govt. of U.P.: (a) it must not be interlocutory; (b) it must not leave the original proceeding below alive; and (c) it must finally determine the rights of the parties or of its own force affect those rights. The Court treated this Full Bench decision as binding and supported by a consensus of authorities (including the Federal Court and other Full Benches).
  3. The Court noted other authorities (Kuppuswami Rao, Dhanalakshmi Ammal, Kapur Singh) that interpret "final order" similarly and observed only a solitary contrary view from the Patna High Court (Allen Berry), which did not persuade the Court to depart from the Full Bench principle.
  4. Applying those principles to the facts, the Court examined the content and effect of its own order. It found that the Court's order did not determine whether the subordinate authorities' orders (which had been challenged by writ) were correct or incorrect; the impugned orders were neither affirmed nor set aside. Instead, the Court held that the Article 226 proceedings were not the appropriate remedy because the applicant already had another remedy (a second appeal/appeal pending before the Income-tax Appellate Tribunal), and that the questions involved mixed questions of law and fact more suitably decided in that appeal.
  5. The Court observed that the applicant had not explained why the alternative remedy (the pending appeal before the Income-tax Appellate Tribunal) was not adequate, specific, convenient or speedy. Because the impugned order left the original proceedings and the underlying rights to be adjudicated by the appellate tribunal, the order did not finally determine the applicant's rights nor of its own force affect those rights.
  6. The Court also addressed the applicant's alternative contention that the order denied his right to obtain a writ under Article 226. The Court relied on Asiatic Engineering Co. v. Achhru Ram to reiterate that Article 226 is discretionary and does not create an absolute right to a writ; thus denying the Article 226 petition did not amount to taking away a legal right to a writ, and did not convert the order into a final order or judgment for the limited purpose of granting a certificate.
  7. On the basis of the above analysis, the Court concluded the impugned order was neither a judgment nor a final order within the meaning of Article 133 or Sections 109 and 110 CPC and therefore a certificate could not be granted.

Holding and Implications

Holding:

DISMISSED. The application for a certificate under Article 132 and Article 133 of the Constitution and Sections 109 and 110 of the CPC was dismissed. The Court fixed costs at Rs. 150 and vacated the interim stay previously granted.

Implications:

  • The immediate effect is that the applicant is not granted a certificate to appeal to the Supreme Court under Article 133 or the corresponding CPC provisions in respect of the impugned order.
  • The impugned order of the subordinate authorities remains undisturbed by this Court's order; the applicant remains entitled to pursue the appeal proceedings already initiated before the Income-tax Appellate Tribunal (as the Court directed that those proceedings could adjudicate the rights in question).
  • The opinion applies established tests from the Full Bench and other authorities to determine what constitutes a "judgment" or "final order"; the Court explicitly followed the Full Bench test and did not purport to lay down a new principle of law. No broader precedent beyond the application of those existing tests is announced in this opinion.

Costs were fixed at Rs. 150 and the interim stay was vacated.

Show full summary ...

    M/S. Bhagwan Dass & Co. Private Ltd., Dehradun v. The Income-Tax Officer Dehradun .

    Bhargava, J.:— This is an application for a certificate under ??? 132 and 133 of the Constitution and Sections 109 ??? 110 of the CPC in respect an order passed by this Court on 28th February, 8, on a petition for issue of writs under Article 226 the Constitution. So far as Article 132 of the istitution is concerned, learned counsel for the in cant has not advanced any arguments at all to ??? that the case, which came up before this ??? or the appeal which is sought to be taken are the Supreme Court raises any substantial ??? of law as to the interpretation of the ??? Article 132 of the Constitution is, before, clearly not applicable.

    2. The application has been argued before by learned counsel for the applicant under 133 of the Constitution and Sections 109 and 110 of the CPC. It was urged by ??? counsel that the applicant was entitled to ??? as of right under Article 133(1)(a) of Constitution and S. 109(b) read with Section 110 of the CPC. In reply to this argument, learned counsel for the opposite party has urged that the order, in respect of which the certificate is sought, is not a judgment, decree or final order passed by this Court and, consequently, neither Article 133 of the Constitution nor Sections 109 and 110 of the CPC apply. The point, that has principally been argued before us in these circumstances, is whether the order passed by this Court amounts to a judgment, decree or final order.

    3. There was another preliminary objection that this order was passed in proceedings which could not be held to be civil proceedings and this was an additional ground on account of which no certificate could be granted under Article 133 of the Constitution or sections 109 and 110 of the CPC but, because of the view we are taking on the first point, we have not considered it necessary to enter into this second point.

    4. It has not been contended before us that the order, in respect of which the certificate is sought, is or can be a decree. Reliance could only be placed on the word ‘judgment’ and the expression ‘final order’. What is a ‘judgment’ was explained by a Bench of this Court in Vishnu Pratap v. Smt. Revati Devi, AIR 1953 All 647 (A), where it was held:

    “A judgment means an adjudication which conclusively determines the rights of the parties and not a mere interlocutory order during the pendency of a case. Every order passed by a single Judge in the exercise of his civil jurisdiction is not a judgment. What is or what is not a judgment will have to be decided in each case with reference to its effect on the rights of the parties. Even if it disposes of another point in dispute between the parties to a suit which has been raised by a separate application and which may be ancillary to the suit itself, it is not necessarily a judgment.”

    5. The other question as to what constitutes a ‘final order’ was considered by a Full Bench of this Court in Mohammad Mahmocd Hasan Khan v. Govt. of U.P, 1956 All LJ 679 : ((S) AIR 1956 All 457 (B)). It was held that

    “In order to make an order a final order three conditions must be satisfied, namely:

    1. that it should not be an interlocutory order.

    2. that even though it is an order which disposes of the proceedings before a Court finally it should not be an order which leaves the original proceeding in the Court below alive, and

    3. that there should be a final determination of the rights of the parties or the order must of its own force affect the rights of the parties.”

    6. A similar principle was laid down by the Federal Court in Kuppuswami Rao v. The King, AIR 1949 FC 1 (C). It was held that to be a final order it must be an order which finally determines the points in dispute and brings the case to an end. Very recently, the Madras High Court also interpreted the expression ‘final order’ in Dhanalakshmi Ammal v. The Income-tax Officer, 1957-2 Mad LJ 567 : (AIR 1958 Mad 151 (D)).

    7. It was held that an order passed in proceedings under Article 226 of the Constitution will be a final order within the meaning of Article 133 of the Constitution if it finally disposes of the rights of parties. Where an order does not determine the right of a petitioner to the property claimed, but leaves it open to be agitated in appropriate proceedings, the order cannot be said to amount to a final order. A Full Bench of the Punjab High Court in Kapur Singh v. Union of India (S), AIR 1957 Punj 173 (E) was also called upon to answer the question whether an order passed in proceedings under Article 226 of the Constitution did or did not amount to a final order. It was held that

    “in every case the Court has to see whether the rights of the parties are finally determined by a decision so that the answer toss the first question referred is that the mere fact that the Court refuses to issue a writ or direction under Article 226 does not take it out of the definition of the words — ‘judgment, decree or final order’ but it will depend upon the facts, circumstances and the nature of decision in each case”.

    8. It appears that a slightly different view was expressed by a Division Bench of the Patna High Court in Allen Berry and Co. Ltd. v. Income-tax Officer, Patna (S) AIR 1956 Pat 175 (F). In that case also petitions had been moved under Articles 226 and 227 of the Constitution against orders of assessment mainly on the grounds that the orders were without jurisdiction and were vitiated by errors apparent on the face of the record.

    9. Those writ petitions were dismissed summarily by a Bench of the Patna High Court and the certificate for leave to appeal to the Supreme Court was sought against that order of dismissal. It was held by the Patna High Court that the orders of summary dismissal of writ applications amounted to final orders though the certificates were refused on the other ground that those orders had not been passed in any civil proceedings. These are the various cases in which the words ‘final order’ used in Article 133 of the Constitution or sections 109 and 110 of the CPC have been interpreted.

    10. In our opinion, we are, in this state of law, bound to follow the view expressed by the Full Bench of this Court in the case of 1956 All LJ 679 : ((S) AIR 1956 All 457 (B)) cited above. Further, it is also clear that the consensus of opinion supports that view. The decision of the Federal Court cited above lays down the same principle and this has also been laid down by the Full Benches of the Madras High Court and the Punjab High Court. There is only the solitary view of the Patna High Court which is very likely against it.

    11. We also entirely agree with the reasons which led to the decisions given by the Full Bench of this Court and which have been supported by the decisions of other Courts as mentioned above. The principle laid down in these cases must, therefore, be followed by us and the principle is that a certificate under Article 133 of the Constitution or section 109(b) read with section 110 of the CPC can only be granted (1) if we treat it as a judgment in case it conclusively determines the rights of the parties and is not a mere interlocutory order during the pendency of a case, and (2) if we treat it as a final order, in case it satisfies the three tests laid down by the Full Bench of this Court in 1956 All LJ 679 : ((S) AIR 1956 All 457 (B)) viz., that it should not; be an interlocutory order, that even though it an order which disposes of the proceedings before court finally, it is not an order which leaves ??? original proceeding in the Court below alive, a that there should be a final determination of ??? rights of the parties or the order must of its ??? force affect the rights of the parties.

    12. Consequently, no certificate can be grant by this Court unless besides other ingredients ??? which has been also laid down when ??? the words ‘judgment’ and ‘final order’ is ??? viz., that there is a final determination of the right of the parties or the order must of its own ??? affect the rights of the parties. This is the ??? that has to be applied in dealing with the ??? application before us.

    13. Our order, in respect of which the ??? ficate is sought, did not at all deal with the question whether the orders of the subordinate ??? rities, against which writs were sought, ??? correct or incorrect. The order neither vacat those orders nor affirmed them. What this Court did was to hold that the proceedings taken moving this Court to exercise its powers ??? Article 226 of the Constitution were not ??? proceedings for the remedy which the ??? was seeking. The applicant had already filed second appeal against the order of assement which was impugned and that ??? appeal was pending before the Income-tax ??? Tribunal. This Court was of the opinion the question arising in this case could best dealt with in that appeal and that ??? under Article 226 of the Constitution were not ??? because there were mixed questions of ??? and fact to be considered which could not be??? in these proceedings.

    14. It was also held that the applicant had ??? alternative remedy of continuing the proceeding before the Income-tax Appellate Tribunal ??? were already pending, and no attempt at all been made on behalf of the applicant to ??? why he was not content with that ordinary ??? provided by law or to show that the other ??? was not specific, convenient and speedy. It thus be seen that by the order of this Court, rights of the applicant were at all decided.

    15. The order, which was impugned, was untouched. It was neither set aside nor affirm. It was left to the applicant to continue his ??? against that order in the proceedings which he ??? already initiated in respect of it before the Income-tax Appellate Tribunal, so that the rights which ??? decided by that order, continued to remain ??? the jurisdiction of the Income-tax Appellate ??? to adjudicate upon.

    16. It was contended by learned counsel the applicant in the alternative that the or which was passed by this Court, at least did ??? the right of the applicant to obtain a writ ??? this Court under Article 226 of the Constitute Even this argument cannot be accepted because has been held by a Full Bench of this Court Asiatic Engineering Co. v. Achhru Ram, AIR 1951 All 746 (G), that

    “there can be no doubt that Article 226 of Constitution makes the issue of directions, ??? or writs discretionary and it cannot be urged any party has a right to any form of order as ??? of course; the discretion is a judicial discretion to be exercised according to judicial ???.”

    17. is to be noticed that Article 226 of the Constitution by grants power to the High Courts without ??? any specific provision giving any one a ??? to invoke that power. This provision is in ??? with the provision contained in Article 32 the Constitution, where not only is the power ??? to the Supreme Court of issuing directions, ??? or writs but there is also a specific ??? guaranteeing the right to move the Supreme ??? by appropriate proceedings for enforcement the rights conferred by Part III of the ???.

    18. When the right to have the Supreme Court appropriate proceedings is guaranteed, it ??? implies that the person moving the Supreme ??? has a right to obtain a decision on the ??? made by him, so that the exercise of the ??? conferred on the Supreme Court to issue ??? orders or writs is not entirely ???.

    19. Under Article 226 of the Constitution no such it to move the High Court has been granted that is why the power of issuing directions, ??? or writs under Article 226 of the Constitution ??? in the High Courts is a discretionary power, ??? as has been held by the Full Bench of Court in AIR 1951 All 746 (G), that power to be exercised judicially and on considerations ??? would amount to exercise of judicial ???.

    20. In this case, therefore, when this Court ??? to exercise the power on the application of Applicant, the Court did not, by dismissing application, adjudicate upon any right of the ??? to obtain a writ from this Court. Learn-counsel referred us to a decision of a Division ??? of this Court in the Rent Control and Evic-Officer, Etah v. Asharfi Lal, AIR 1958 All 153 in support of his contention that a person has ??? to move a High Court for relief under 226 of the Constitution. What was decided is Court was to the following effect:

    “Rule 4 confers upon the landlord the right to are a tenant and if, as in the case before us, right is exercised, then in our opinion the ??? had a right to have an allotment order ??? in his favour unless the District Magistrate ??? an immediate allotment, for reasons stated, other. If the District Magistrate acts in ??? of the Rule the allottee is an ??? and is entitled to move this Court for relief Article 226.”

    ??? opinion, this view expressed by this Court not amount to laying down that any person legal right of claiming relief under Article 226 ??? Constitution. Under the Constitution, ??? was vested in the High Court to exercise were under Article 226 of the Constitution and procedure for exercising the powers was laid in the Rules of Court. The Rules of Court ??? that an application should be made to this for exercising that discretionary power only ??? who were interested.

    ??? was in this sense that the Court held that ??? in that case was entitled to move the Court for relief under Article 226 of the Constitution. What the Court did was merely to say that, being a person interested, he was the appropriate person for moving the Court to exercise its discretion under Article 226 of the Constitution and not to lay down that such a person had any legal right to move the Court and to claim issue of a writ, direction or order under Article 226 of the Constitution, as of right, provided the merits of his claim justified it. In the circumstances, this decision does not go against the view which was taken by the Full Bench of this Court in the case of AIR 1951 All 746 (G), cited above.

    21. In these circumstances, we are of the view that the order, against which this application was moved, was not a judgment or a final order as it did not decide any right of the applicant in this Court, nor did it affect any right of the applicant which might have been the subject-matter of dispute before other authorities or tribunals, in respect of which the applicant has been left to seek his remedy in accordance with the appropriate procedure provided by law. This application cannot, therefore, be granted and is dismissed with costs which we fix at Rs. 150/-. The interim stay order passed by us is vacated.

    V.B.B

    22. Application dismissed.

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    Comments

    M/S. Bhagwan Dass & Co. Private Ltd., Dehradun v. The Income-Tax Officer Dehradun .
    (Mar 31, 1958)