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Case Number

C.M.P Nos. 3314 of 1958 and 5767 and 5919 of 1960, in O.P Nos. 8 of 1958, 97 of 1958 and A.S No. 111 of 1959

Attorney(S)

For the Appellant: K. Velayudhan Nair
For the Respondent: 2nd Government Pleader
For the Respondent: 4 and 5 G. B. Pai P. Govindan Nair K. V. R. Shenoi
For the Appellant: P.Balagangadhara Menon K. K. Mathew V. Ramashenoi
For the Respondent: P. Govindan Nair K. V. R. Shenoi K. Sukumaran Government Pleader

Judges

M.A Ansari, C.J
T.C Raghavan
M. Madhavan Nair, JJ.

Acts

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Smart Summary

Structured Summary of the Opinion (Raghavan, J.) — Applications for Certificates under Article 133

Factual and Procedural Background

Three separate applications for certificates under Article 133 of the Constitution were brought for leave to appeal to the Supreme Court:

C.M.P. No. 3314 of 1958 (in O.P. No. 8 of 1958) — challenging the award of an Industrial Tribunal under the Industrial Disputes Act, 1947; the writ was dismissed by this Court.
C.M.P. No. 5767 of 1960 (in Q.P. No. 97 of 1958) — seeking certiorari to quash notices by the Regional Provident Fund Commissioner requiring petitioners to make Employees' Provident Fund contributions; the writ was dismissed by a Full Bench of this Court.
C.M.P. No. 5919 of 1960 (against judgment in A.S. No. 111 of 1959, which itself arose from O.P. No. 489 of 1937) — concerned with quashing a portion of an Industrial Tribunal award. A Single Judge dismissed the writ; on appeal a Division Bench reversed and allowed the appeal, quashing the Tribunal's award. The petition sought leave to appeal against that appellate judgment.

It was not disputed in any of the three cases that the amount or value of the subject-matter of the dispute was and is not less than Rs. 20,000.

Legal Issues Presented

Whether an order dismissing a writ petition under Article 226 of the Constitution is a "judgment" or "final order" within the meaning of Article 133(1).
Whether proceedings under Article 226 of the Constitution qualify as "civil proceedings" for the purposes of Article 133(1), in particular when such proceedings involve rights to property or other civil rights.
Whether Article 133(1)(a) is applicable where the "Court of first instance" is, in practice, a Bench constituted by a single Judge of the High Court (i.e., whether the phrase "Court of first instance" excludes High Court benches or internal appeals arranged within the High Court).

Arguments of the Parties

Petitioners' Position

The petitions sought certificates under Article 133 for leave to appeal to the Supreme Court (i.e., the petitioners wished to appeal to the Supreme Court from the High Court decisions).
The subject-matter of each dispute involved civil rights (examples given in the opinion: entitlement to salary, bonus and other remunerations; liability to make contributions to the Employees' Provident Fund), and it was not disputed that the value in each case met the monetary threshold of Rs. 20,000.

Respondents' Objections

In the first two cases: objection that the judgments/orders sought to be appealed against (orders dismissing writ petitions under Article 226) are not "judgments" or "final orders" in civil proceedings of the High Court, and thus Article 133 cannot apply.
In the last case: the above objection was raised, and additionally it was contended that Article 133(1)(a) could not apply because the "Court of first instance" contemplated by that provision is a court subordinate to the High Court, and not a Bench constituted by a single Judge of the High Court itself.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Collector of Monghyr v. Maharaja Pratap Singh Bahadur, (S) AIR 1957 Pat 102 (Patna Full Bench)	Held that High Court jurisdiction under Art. 226 is extraordinary and not for declaring civil rights; proceedings under Art. 228 are supervisory and not concerned with determination of civil rights.	Quoted as authority for the view that dismissal under Art. 226 is not necessarily a "judgment" or "final order" and that Art. 226 proceedings may not be civil proceedings.
Shriram Hanumanbux v. State of Madhya Pradesh, (S) AIR 1955 Nag 257	Expressed that the extraordinary jurisdiction under Art. 226 is not meant to declare rights but to ensure proper administration; refusal to issue writ indicates no irregularity; such a decision not covered by "judgment" or "final order" in Art. 133(1).	Used to illustrate the line of authorities holding that dismissal of a writ is neither a "judgment" nor a "final order" and that Art. 226 proceedings are not civil proceedings in that sense.
Kapur Singh v. Union of India, (S) AIR 1957 Punj 173 (Punjab Full Bench)	Held that the words "judgment, decree or final order" in Art. 133(1) must finally decide the rights of the parties; whether a decision falls within those words depends on whether rights are finally determined by the decision — the test is factual.	Presented as a contrasting authority: supports the view that an Art. 226 dismissal may be a final order if it finally disposes of the parties' rights; the Court considered this approach in balancing conflicting authorities.
Dhanalakshmi Ammal v. Income-tax Officer, AIR 1958 Mad 151 (Madras Division Bench)	Held that a proceeding under Art. 226 for enforcement of a right to property can be a civil proceeding (though not every Art. 226 application will be civil).	Relied on to support the proposition that some writ petitions may be "civil proceedings" for Art. 133 purposes where civil rights (e.g., property rights) are involved.
Kehar Singh Nihal Singh v. Custodian General, AIR 1959 Punj 58 (Punjab High Court)	Stated that the subject-matter determines civil/criminal character; enforcement of a civil right via Art. 226 remains a civil proceeding; "judgment, decree or final order" connotes adjudication on the merits that finally disposes of the rights of the parties.	Used to support the Court's conclusion that proceedings brought under Art. 226 to enforce civil rights are civil proceedings and that finality depends on whether rights are finally disposed of.
Income-tax Officer v. Joti Prasad Agarwal, AIR 1960 All 84 (Allahabad High Court)	Held that a proceeding under Art. 226 is a civil proceeding within Article 133 if it relates to civil rights.	Adduced to bolster the view that Art. 226 proceedings involving civil rights fall within the ambit of "civil proceedings" for Article 133.

Court's Reasoning and Analysis

The Court undertook a structured analysis of the contested issues by first identifying the constitutional framework and then surveying conflicting High Court authorities before arriving at its view.

Constitutional framework: The Court noted that Article 132 contemplates three categories for appeals to the Supreme Court — civil, criminal and other — and Article 133(1) requires that the judgment or final order be in a civil proceeding.
Conflict of authorities: The opinion reviewed authorities taking two divergent positions:
- One line (e.g., Patna Full Bench, Nagpur decision) treats Art. 226 jurisdiction as extraordinary/supervisory and therefore not directed to declaring civil rights; dismissals under Art. 226 in that view do not amount to "judgments" or "final orders" and Art. 226 proceedings are not civil proceedings.
- Another line (e.g., Punjab Full Bench, Madras Division Bench, Punjab single bench in Kehar Singh, Allahabad High Court) holds that the true test is whether the decision finally disposes of the rights of the parties and whether the subject-matter relates to civil rights; Art. 226 proceedings enforcing civil rights can therefore be civil proceedings and a dismissal may be a final order depending on facts.
Synthesis and legal test adopted: The Court articulated the following controlling propositions derived from the Constitution and the cited cases:
- Article 133(1) requires a judgment in a civil proceeding or a final order in a civil proceeding — meaning a judgment or order that finally disposes of the dispute between the parties before the High Court (as contrasted with interlocutory orders).
- A "civil proceeding" for Article 133 is one in which rights to property or other civil rights are involved; it is immaterial that such a proceeding is pursued by way of a writ under Article 226 or that the jurisdiction invoked is special or extraordinary.
- Whether a writ dismissal is a "final order" depends on whether the decision finally disposes of the rights of the parties in the particular case; the mere fact of being an Art. 226 proceeding does not exclude it from being civil in character if civil rights are the subject-matter.
Application to the present cases:
- In C.M.P. No. 3314 of 1958 the dispute concerned petitioners' civil rights regarding salary, bonus and remunerations.
- In C.M.P. No. 5767 of 1960 the dispute involved petitioners' civil right regarding liability to contribute to the Employees' Provident Fund.
- In C.M.P. No. 5919 of 1960 the petition likewise involved civil rights.
- Because the subject-matter in each case involved civil rights and because the amount in dispute met the statutory threshold, the Court held that Article 133(1) applied.
On the "court of first instance" point (C.M.P. No. 5919 of 1960): The Court rejected a narrow construction that would confine "court of first instance" to a court subordinate to the High Court and exclude a High Court Judge sitting as the court of first instance. The Court observed that internal arrangements of High Courts (e.g., appeals to a fuller Bench under Letters Patent) were known to the Constitution's framers, and there was no indication that such cases were to be excluded from Article 133.
Conclusion of analysis: The Court found no difficulty in applying Article 133(1)(a) to the three matters before it and thereby granted certificates for leave to appeal to the Supreme Court.

Holding and Implications

Holding:

CERTIFICATES GRANTED. The Court granted certificates under Article 133(1)(a) that the amount or value involved in each case is not less than Rs. 20,000 and, under Article 133(1)(a) and sections 109 and 110 of the Civil Procedure Code, allowed the petitions for leave to appeal to the Supreme Court. The Court ordered no costs.

Implications:

Direct effect: The petitioners in the three identified proceedings are granted leave to appeal to the Supreme Court; their appeals may proceed in accordance with Article 133 and applicable procedural law.
Interpretive consequence articulated by the Court: The opinion clarifies that for Article 133(1) purposes a "judgment" or "final order" is one that finally disposes of the dispute between the parties as far as the High Court is concerned, and that a proceeding under Article 226 will be treated as a "civil proceeding" under Article 133 where the subject-matter involves rights to property or other civil rights. The Court also held that the expression "court of first instance" in Article 133(1)(a) is not to be narrowly read so as to exclude a High Court Judge or a Bench of the High Court acting as the court of first instance.
The opinion therefore resolves the specific applications before it in favour of permitting appeals to the Supreme Court where the monetary threshold and the civil nature of the rights in issue are satisfied; it addresses conflicting High Court authorities and adopts the test focused on the subject-matter and finality of the decision.

HE/H.B

Order recorded in the opinion: "Certificates granted." (No costs were awarded.)

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Dhanalakshmi Vilas Cashew Co. And Others v. President, Cashew Industries Staff Association And Others

Raghavan, J.:— These are applications for certificates under Art. 133 of the Constitution for leave to appeal to the Supreme Court. “C.M.P No. 3314 of 1958 is in O.P No. 8 of 1958, which was to quash the award of an Industrial Tribunal under the Industrial Disputes Act, 1947 and the writ was dismissed by this Court. C.M.P No. 5767 of 1960 is in Q.P No. 97 of 1958, which was for the issue of a writ of certiorari to quash certain notices issued by the Regional Provident Fund Commissioner, Trivandrum requiring the petitioners to make contributions to the Employees' Provident Fund. The said O.P was also dismissed by a Full Bench of this Court.

2. The last of the petitions, namely, C.M.P No. 5919 of 1960, is for a certificate for leave to appeal against the judgment in A.S No. 111 of 1959, the appeal itself being against O.P No. 489 of 1937, which was to quash a portion of the award of an Industrial Tribunal. In this last case a learned Judge of this Court dismissed the writ petition but in appeal a Division Bench reversed the order of the Single Judge and allowed the appeal thereby quashing the award of the Tribunal. The petition is for leave to appeal against that judgment in appeal. In all these three cases it is not disputed that the amount or value of the subject-matter of the dispute was and is still not less than Rs. 20,000/-. In the first two cases the objection is raised to granting the certificates on, the ground that the judgments or orders-sought to be appealed against are not judgments or final orders in civil proceedings of the High Court. In the last case, besides the above objection, another objection is also raised, namely, that Art. 133(1)(a) cannot apply to the case as the Court of first instance contemplated therein is a Court subordinate to the High Court and not a Bench constituted by a single Judge of the High Court itself. Now we would examine these conditions.

3. The first contention that is common to these cases is that the orders dismissing the writ petitions under Art. 226 of the Constitution are not judgments or final orders in civil proceedings. The first question arising for consideration in this context is whether the orders of dismissal are judgments or final orders. The next question is whether the proceedings in these cases under Art. 220 of the Constitution are civil proceedings.

4. The Constitution contemplates three categories of proceedings for purposes of appeal to the Supreme Court, namely, civil, Criminal or other proceedings. This is evident from Art. 132 of the Constitution. In this connection the learned counsel of the respondents invite our attention to a Full Bench decision of the Patna High Court in Collector of Monghyr v. Maharaja Pratap Singh Bahadur, (S) AIR 1957 Pat 102.

5. Ramaswami, C.J delivering the judgment of the Full Bench, observed that the jurisdiction of the High Court under Art. 226 is an extraordinary jurisdiction vested in it not for the purpose of declaring the civil rights of the parties, but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdictions. The learned Chief Justice further observes that the jurisdiction of the High Court under Art. 228 is a supervisory jurisdiction and a proceeding under the said Article is not concerned with the determination of the civil rights of the parties.

6. In Shriram Hanumanbux v. State of Madhya Pradesh, (S) AIR 1955 Nag 257, the same view, namely, that the extraordinary jurisdiction vested in the High Court under Art. 226 is not meant to declare any rights but only to ensure that the law of the land was being properly administered and the refusal to issue the writ has only the effect of saying that the High Court does not see any irregularity in the administration of the relevant law, has been expressed.

7. It has also been laid down in tills case that such a decision is not covered either by the word “judgment’ or the phrase “final order” in Art. 133(1). The reasoning in the aforesaid two cases and others on similar lines expresses the view (1) that the dismissal of a writ under Art. 226 of the Constitution is neither a judgment nor a final order and (2) that a proceeding under Art. 226 is not a civil proceeding.

8. There are other decisions taking a different view on this question. In Kapur Singh v. Union of India, (S) AIR 1957 Punj 173, a Full Bench of the Punjab High Court has held that “judgment, decree or final order” in Art. 133(1) of the Constitution are textually the same as those used in section 205 of the Government of India Act of 1935 and in order that a decision should fall within the definition of the word “judgment” or the phrase “final order”, (i) it must finally decide the rights of the parties and the word “judgment” means a final judgment, as contrasted with an interlocutory judgment, by which right to the relief claimed is decided with regard to all matters in issue and (ii) an order is final if it finally disposes of the rights of the parties.

9. The Full Bench has further held that in every case the Court has to see whether the rights of the parties are finally determined by the decision and the mere fact that the Court has refused to issue a writ or direction under Art. 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 the decision in each case. In Dhanalakshmi Ammal v. Income-tax Officer, AIR 1958 Mad 151, a Division Bench of the Madras High Court has expressed the view that there is no reason why a proceeding under Art. 226 of the Constitution for the enforcement of a right to property cannot be deemed to be a civil proceeding, though it may be that every application under Art. 226 may not be deemed to be a civil proceeding.

10. Rajamannar, C.J, gives as illustration an application for a writ of a habeas corpus or a writ of prohibition to prevent prosecution of criminal proceedings not being a civil preceding. This decision has expressly dissented from the Full Bench decision of the Patna High Court in (S) AIR 1957 Pat 102, and has further held that the test for determining the finality of an order is whether the order has finally disposed of the rights of the parties.

11. Again in Kehar Singh Nihal Singh v. Custodian General, AIR 1959 Punj 58, the Punjab High Court has laid down that for determining whether the proceedings are of a civil or criminal nature or fall in any special category, it is the subject-matter of the proceedings which should be seen, rather than the particular jurisdiction of the forum, under which the petitioner has invoked his rights. The decision has also held that a proceeding which is undoubtedly of a civil nature does not cease to be so because the petitioner has invoked the extraordinary jurisdiction of the High Court under Art. 226 and that it is not the manner in which, the interference of the High Court is sought, but the nature of the claim canvassed, which should determine the civil character or otherwise of the proceedings.

12. It has also been laid down in this case that a proceeding taken for the enforcement of a civil right is a civil proceeding, even if the jurisdiction of the Court which has been invoked happens to be special or extraordinary. The decision further lays down that a civil proceeding relates to private rights and remedies given to individuals or corporations as members of the community in contradistinction to those which are public and relate to Government. This decision is also authority for the proposition that the expression “judgment, decree or final order” is a compendious expression and it connotes adjudication by the Court upon the rights of the parties appearing before it on the merits of the dispute and does not include an interlocutory judgment. Finally in Income-tax Officer v. Joti Prasad Agarwal, AIR 1960 All 84 the Allahabad High Court has expressed the view that a proceeding under Art. 226 is a civil proceeding within the meaning of Art. 133 if it relates to civil rights.

13. We do not propose to add to these citations by referring to other decisions of other High Courts, where also this question has come up for consideration. According to us the position appears to be this under the Constitution: Three categories of proceedings are contemplated for purposes of appeal to the Supreme Court, namely, civil criminal and other proceedings. These three categories, among themselves, cover all proceedings that might come before a High Court. Under Art. 133(1) the judgment must be a judgment in a civil proceeding or the order sought to be appealed against must be a final order in a civil proceeding.

14. The judgment or final order that is contemplated is the judgment or final order, that finally disposes of the dispute between the parties so far as the High Court is concerned, as contrasted with an interlocutory judgment or order. The civil proceeding that is contemplated by the Article is a proceeding in which some rights to property or other civil rights are involved. It is of no consequence whether such a proceeding is taken in a suit or by way of a writ under Art. 226 of the Constitution. If, as we have already observed, a right to property or any other civil right is involved in the proceeding, then the proceeding is a civil proceeding, no matter the jurisdiction of the Court invoked is special or extraordinary. It also does not matter whether the proceeding under Art. 226 has ended in dismissal.

15. If this is borne in mind, we do not think there is any difficulty in the present cases before us. In C.M.P No. 3314 of 1958 the subject-matter in dispute in the writ petition as well as in the proposed appeal is a civil right of the petitioners as to whether they are liable to pay more by way of salary, bonus and other remunerations. Similarly in C.M.P 5767 of 1960 the dispute is regarding the liability of the petitioners to contribute towards the Employees' Provident Fund, which also involves a civil right. Equally so in C.M.P No. 5919 of 1960 the petitioners' civil rights are involved.

16. In the last of the aforesaid cases there is the further contention raised namely, whether the case comes within Article 133(1)(a). As we have already indicated at the commencement of this judgment, the objection is that the Court of first instance mentioned in Art. 133(1)(a) is a Court subordinate to the High Court and not a Court constituted by one Judge of the High Court itself. We do not think that it would have been in the contemplation of the makers of the Constitution to exclude such cases from appeal to the Supreme Court. We are not inclined to give a restricted meaning to the expression “Court of first instance” to mean only a Court subordinate to the High Court.

17. If against a decision in a matter which comes to the High Court within its original jurisdiction, by internal arrangement an appeal is Provided to a fuller or larger Bench of the same High Court, we are of the view that to such a case Art. 133(1)(a) Will apply for it is quite possible for the High Court to be the Court of first instance as well as the Court of appeal in the same matter.

18. Such internal arrangements for appeal in the High Courts under the Letters Patent or otherwise were well-known to the framers of the Constitution and it cannot be said that they intended to exclude such cases from the scope of Art. 133.

19. In the above view, we grant certificates under Art. 133(1)(a) that the amount or value involved in each of these Cases is not less than Rs. 20,000/- and as such under the said Article and under sections 109 and 110 of the CPC we allow the petitions for leave to appeal to the Supreme Court. We order no costs.