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State Of Kerala v. K. Krishnankutty, M.L.A And Others
Factual and Procedural Background
This unnumbered Writ Appeal was filed by the State of Kerala against a common interlocutory order dated 20-11-1984 of Sivaraman Nair J. A civil miscellaneous petition seeking a stay of the single Judge's order was filed by the State in the appeal. The Advocate General moved the matter as an "urgent motion" on the afternoon of 21-11-1984.
The procedural genesis lies in Original Petitions filed by certain Hindu members of the Kerala Legislative Assembly (the petitioners). In those Original Petitions the petitioners challenged the constitutional validity of the Travancore Cochin Hindu Religious Institutions (Amendment) Ordinance, 72 of 1984, and sought a stay of the enforcement of its provisions in relation to an election to the Travancore Devaswam Board. The opinion refers to two dates in the record for the proposed election: 28-11-1984 and 22-11-1984. The petitioners contended that they were entitled to participate in the election of one member of the Travancore Devaswam Board without being required to deliver a declaration of belief in God and profession of the Hindu religion as required by Section 4 of the Ordinance, and that that requirement infringed their freedoms under Articles 25 and 26 of the Constitution.
The learned single Judge (Sivaraman Nair J.) made an interim order directing that the provisions of Section 4 of the Ordinance (which substituted Section 5 of the Travancore-Cochin Hindu Religious Institutions Act, 1950) should not be given effect to in the conduct of the election of one member of the Travancore Devaswam Board. Concretely, the single Judge directed that the election of that one member be conducted without insisting that the Hindu members of the Legislative Assembly deliver a signed declaration that they believe in God and profess the Hindu religion; the result of that election was made subject to further orders of the court. The State of Kerala appealed from that interim order and sought a stay of its operation.
Legal Issues Presented
- Whether an appeal lies under Section 5(i) of the Kerala High Court Act, 1958 from the interlocutory/interim order of a single Judge (i.e., whether the single Judge's order dated 20-11-1984 was a "judgment or order in the exercise of original jurisdiction" within the meaning of S.5(i) and therefore appealable to a Bench of two Judges).
- Whether the petition for stay of the single Judge's interim order is maintainable in the circumstances (closely tied to the first issue on the appeal's maintainability).
Arguments of the Parties
Appellant (State of Kerala) / Advocate General
- The Advocate General argued that the common order of the learned single Judge was a "final order" adjudicating the rights of parties within the meaning of Section 5(i) of the Kerala High Court Act, 1958, and was therefore appealable to a Bench of two Judges under that provision.
- It is recorded that the order of the single Judge was also assailed "on the merits" (the opinion records that the order or direction was contested on merits), but the opinion does not record detailed merits arguments presented by the State in this appeal context.
Respondents (Petitioners in the Original Petitions)
- The petitioners (Hindu members of the Legislative Assembly) argued in the Original Petitions that Section 4 of the Ordinance (substituting Section 5 of the Act) required them to deliver a declaration of belief in God and profession of the Hindu religion in order to vote, and that this requirement infringed their freedom of conscience and religion guaranteed under Articles 25 and 26 of the Constitution.
- The single Judge recorded that the petitioners' contentions — particularly that Section 5(2) of the Act as amended (and the substituted provision) imposed fetters on Article 26 and eroded Article 25 freedoms — were prima facie sustainable and required further investigation; these contentions led to the interim protection afforded by the single Judge to conscientious objectors in respect of one member's election.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Central Bank of India Ltd. v. Gokal Chand, AIR 1967 SC 799 | Interlocutory orders are steps towards final adjudication; they regulate procedure and do not affect rights or liabilities of parties and therefore are generally not appealable. | Used to illustrate that many interlocutory orders taken in pending proceedings do not affect rights and thus fall outside the ambit of an appeal under S.5(i). |
| State of Kerala v. Sudarsan Babu, 1983 Ker LT 764 : (AIR 1984 Ker 1) (Full Bench) | Interpretation that the term "order" in S.5(1) must have the character of an adjudication final and binding on the parties; S.5(1) does not permit appeals against every interlocutory order. | Relied upon to support the proposition that "order" takes its colour from "judgment" and must be final to be appealable under S.5(1). |
| P.K. Kunju v. State of Kerala, 1970 Ker LT 644 | A finding rejecting some grounds in a pending petition is at best an interlocutory finding and not a "judgment or order" within the meaning of S.5 so as to attract an appeal. | Quoted with approval to show that interim refusals or findings in a pending petition do not give rise to an appeal under S.5. |
| Mohammad Haji v. Ayamma, 1976 Ker LT 326 (Full Bench) | The expression "judgment" denotes a decision pronounced on the merits finally determining the rights of parties (analogous to Art. 133(i) interpretation); thus a non-final decision is not a "judgment" for S.5 purposes. | Used to explain that S.5(iii) (and by analogy S.5(i)) contemplate final adjudications and not interim procedural rulings; supported the court's finality test. |
| Tarapore & Co., Madras v. Tractors Export, Moscow, AIR 1970 SC 1168 | Affirmed the test of finality for determining whether an order is appealable: whether the judgment or order finally disposed of the rights of the parties. | Quoted as authoritative Supreme Court authority supporting the finality test relied upon by the court. |
| Prakash Chand Agarwal v. Hindustan Steel Ltd., AIR 1971 SC 2319 | Reinforces the finality test and interpretation of when a decision is to be treated as final for appeal purposes. | Referred to alongside Tarapore & Co. as supporting Supreme Court authorities for the finality principle. |
| Mohammad Amin Brothers Ltd. v. Union of India, AIR 1950 FC 77 | Expressly states the test of finality: whether the judgment or order finally disposed of the rights of the parties; if the suit remains a live suit, no appeal lies against such an order. | Quoted to define what constitutes a final judgment or order — the court applied this definition to determine that the single Judge's order was not final. |
| Abdul Rahman v. D.K. Cassim and Sons, 60 Ind App 76 : AIR 1933 PC 56 | Authority on the meaning of "finality" in relation to suits: an order must produce finality in relation to the suit to be appealable. | Quoted (via Mohammad Amin Brothers) as part of the lineage of authority explaining the finality test the court applied. |
| A.S. No. 17 of 1978 & C.M.A. No. 185 of 1984 (Div. Bench decision dated 26-10-1984), reported AIR 1985 Ker 134 | Referred to as an instructive, recent Division Bench decision relevant to the maintainability/finality question. | Described as instructive and cited to buttress the court's view on when interlocutory orders fall outside S.5's scope. |
Court's Reasoning and Analysis
The Bench's analysis focused principally on the statutory phrase in Section 5(i) of the Kerala High Court Act, 1958: "a judgment or order of a single Judge in the exercise of original jurisdiction." The decisive question was whether that phrase includes interlocutory or procedural orders like the single Judge's interim direction dated 20-11-1984.
The court reviewed authorities (including Supreme Court and Full Bench decisions) that consistently deploy a finality test: an order is appealable under provisions of this character only if it constitutes an adjudication that finally determines the rights of the parties. The court emphasized that the term "order" must be read in the context of "judgment" and thereby be given the character of a final adjudication, not a procedural or interlocutory ruling.
Applying that test to the present facts, the Bench observed that the single Judge's direction was interim in nature and was given in pending Original Petitions which remain "live" before the court. The single Judge had specifically framed the relief as an interim protection for one member's election and had expressly made the result of that election subject to further orders. The order did not finally adjudicate any point raised in the Original Petitions nor did it dispose finally of the rights of the parties. Relying on the cited precedents, the court therefore concluded that the impugned order was interlocutory/procedural and not a final "judgment or order" within S.5(i).
Because the appeal was held to be not maintainable on that statutory-interpretation/finality basis, the Bench declined to consider the merits of the single Judge's order. By parity of reasoning the petition filed for stay of the operation of the learned single Judge's interim order was also held not maintainable and was not entertained.
Holding and Implications
Holding: Writ appeal dismissed. The Bench held that the writ appeal is not maintainable under Section 5(i) of the Kerala High Court Act, 1958 because the order dated 20-11-1984 is an interlocutory/interim order and not a final "judgment or order" within the meaning of S.5(i).
Implications:
- Direct effect on the parties: The appeal filed by the State of Kerala is dismissed for want of maintainability; the Bench did not decide the substantive constitutional challenges to the Ordinance or the single Judge's interim directions. The petition for stay of the single Judge's order was not entertained for the same reason.
- Procedural consequence: The court applied and reiterated the settled finality test for appealability under S.5(i) — that only orders amounting to final adjudications of rights are appealable — and therefore left the underlying Original Petitions pending for final determination by the single Judge or subsequent appropriate proceedings. The Bench expressly refrained from deciding the merits and gave no determination on the constitutionality issues raised in the Original Petitions.
- Precedential note: The opinion applies and follows existing authorities on the finality test; the decision does not purport to lay down a new principle beyond those authorities and resolves the appeal on the maintainability point alone.
Writ appeal dismissed.
1. The above unnumbered Writ Appeal is filed by the State of Kerala against the common order of Sivaraman Nair J. dt. 20-11-1984, passed in the above proceedings. A civil miscellaneous petition praying for stay of the operation of the order of the learned single Judge has also been filed by the State in the unnumbered writ appeal. The matter was moved as “urgent motion” on 21-11-1984 afternoon by the Advocate General. The State of Kerala, appellant in the unnumbered Writ Appeal, was the respondent in the Original Petitions. Petitioners in the Original Petitions are the respondents in the unnumbered Writ Appeal. The petitioners filed the Original Petitions challenging the constitutional validity of Travancore Cochin Hindu Religious Institutions (Amendment) Ordinance, 72 of 1984 and sought stay of enforcement of the provisions of the said enactment in the election to the Travancore Devaswam Board to be conducted on 28-11-1984. The petitioners are Hindu members of the Kerala Legislative Assembly. It is stated that they are entitled to participate in the election of one member of The Travancore Devaswam Board which is proposed to be conducted on 22-11-1984 without being required to deliver a declaration of their faith in God and profession of Hindu religion, as provided by Section 4 of the Ordinance. It is stated that the said provision is an inroad into their freedom of conscience and religion guaranteed under Arts. 25 and 26 of the Constitution.” After hearing counsel for the petitioner as also the learned Advocate-General, Sivaraman Nair, J. held as follows:
“In the present case, the argument is that a considerable membership of the denomination, including the petitioners, are being completely ignored in the matter of setting up the Board of Administration, of institutions of the denomination and therefore the restrictions imposed by S. 5(2) of the Act, as amended, forge fetters into the freedom enjoined by Article 26 of the Constitution. This submission seems to me to be prima facie sustainable. In any case, this is a contention which requires further investigation.
The submission that the freedom of conscience and religion assured by Article 25 of the Constitution is being eroded by the requirement contained in S. 5(2) of the Act, as amended, also seems to me to be a matter for serious deliberation.
I am inclined to accept the submission of the Advocate General, that the election to the Travancore Devaswam Board under S. 3 of the Act any not be stayed in view of the orders of this court in other Original Petitions. But that should not justify the exclusion of conscientious objectors among the electors from exercising their right to participate in the election without filing declarations of faith. The provisions of S. 5 of the Travancore-Cochin Hindu Religious Institutions Act, 1950, and stood the ground for the last 34 years. Two out of the three members of the Board could have already been elected under the unamended provisions. Election of a third member under the same provisions, till such time as the validity of the provisions of the Ordinance is finally pronounced upon by this Court, cannot be considered to cause any serious hardship, or legal, or other problems in the working of the Board.
Considering all the aspects of the matter, it seems to me necessary to direct that the provisions of S. 4 of the Ordinance, 72 of 1984, substituting S. 5 of the Travancore Cochin Hindu Religious Institutions Act, shall not be given effect to in the conduct of the election of one member of the Travancore Devaswam Board. In other words, the election of that one member may be conducted without insisting upon the Hindu members of the Legislative assembly delivering to the person commissioned by the Governor of Kerala to preside over the meeting, a declaration signed by each of them to the effect that he believes in God and professes the Hindu religion. The result of the election will however, be subject to further orders from this court.”
The State of Kerala has come up in appeal from the aforesaid order of the learned Single Judge dt. 20-11-1984. There is also a prayer for stay of the operation of the aforesaid interim order.
2. The Registry has taken up an objection to the effect that the writ appeal filed against an interlocutory order is not maintainable. The unnumbered writ appeal along with the unnumbered C.M.P for stay of operation of the order of the learned single Judge came up for orders before us. The appeal is sought to be sustained under S. 5(i) of the Kerala High Court Act, 1958. We heard the learned Advocate General on the maintainability of the appeal from the common order dt. 20-11-1984 passed in the interlocutory petitions in the Original Petitions. The learned Advocate General argued that the common order sought to be appealed against is a “final order” adjudicating the rights of parties coming within S. 5(i) of the Kerala High Court Act, 1958 and hence appealable. On the merits, the order or direction of the learned single Judge was assailed.
3. S. 5 of the Kerala High Court Act, 1958 provides for appeal from the judgment or order of a single Judge. Section 5 reads as follows:
“5. Appeal from judgment or order of single Judge: An appeal shall lie to a Bench of two Judges from—
(i) a judgment or order of a single Judge in the exercise of original jurisdiction; or
(ii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate court; or
(iii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court, if the Judge who passed such judgment certifies that the case is a fit one for appeal.”
The question that falls to be considered is, whether the crucial words, “a judgment or order of a single Judge in the exercise of original jurisdiction” occurring in S. 5(i) of the High Court Act, 1958, will take in, the order dt. 20-11-1984 passed by a learned single Judge, in interlocutory petitions filed in the Original Petitions. No doubt, the expression “judgment or order” occurring in S. 5(i) of High Court Act 1958, appears to be wide. It is a matter of common knowledge that in pending Original Petitions, parties may move the court for obtaining different kinds of “interlocutory orders”. Steps may be taken for summoning persons, production and inspection of documents, in rare cases for the issue of a commission, fixing a date of hearing and the like. It has been held by the Supreme Court in Central Bank of India Ltd. v. Gokal Chand AIR 1967 SC 799, that all such interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only, and do not affect any right or liability of the parties and so not appealable. Similarly, pending the Original Petition, parties may move for stay of pending proceedings in subordinate courts or tribunals, or for the issue of appropriate directions similar thereto. Can the orders passed in such motions be considered to be “final”? In State of Kerala v. Sudarsan Babu, 1983 Ker LT 764 : (AIR 1984 Ker 1) (FB) Poti C.J observed at page 769 (of Ker LT) (at p. 6 of AIR):
“If S. 5(1) is to be understood as enabling a party to file an appeal against any order interlocutory or otherwise even an order granting an adjournment will be appealable to a Bench of two Judges. That is not, according to us, the scope of S. 5(1). The term ‘order’ is found in association with the term ‘judgment’ and therefore necessarily it takes its colour from such association. S. 5(1) applies not only to writ proceedings, but to all proceedings of original jurisdiction. In the exercise of original jurisdiction the learned Judge may dispose of a proceeding by a judgment in certain cases and by an order in other cases. In either of such cases since the disposal is an adjudication there is finality attached to it and the judgment or order operates to decide the issue between the parties.”
Again at p. 770 (of Ker LT): (at p. 7 of AIR) it was held:
“The term ‘order’ in S. 5(i) must have the character of an adjudication which is final and binding on the parties.”
an earlier Division Bench decision, P.K Kunju v. State of Kerala 1970 Ker LT 644 to the following effect was quoted with approval:
“The petition brought by the appellant which despite other unnecessary though perhaps not improper prayers, is for quashing the notification, Ext. P6, is still pending before the learned single Judge and his rejection of some of the grounds urged in support of the prayer is at best a finding regarding those grounds and not a judgment or order within the meaning of S. 5 of the Kerala High Court Act so as to attract the appeal conferred by that section. Therefore, this appeal does not lie.”
It can be seen that S. 5(iii) of the Kerala High Court Act, 1958 postulates an appeal to a Bench of two Judges from “a judgment of a single Judge in the exercise of appellate jurisdiction”, and construing the aforesaid expression ‘judgment’ occurring in S. 5(iii) of the Act (which is also of similar import at S. 5(i) of the Act) speaking for the Full Bench, in the decision reported in Mohammad Haji v. Ayamma 1976 Ker LT 326 (FB) Balakrishna Eradi J. (as he then was) observed:
“In our opinion, the expression ‘judgment’ occurring in cl. (iii) of S. 5 has been used in the same sense in which the said word has been employed in Art. 133(i) of the Constitution, and it connotes a decision pronounced by the Court on the merits of the cause finally determining the rights of parties. The Tarapore & Co., Madras v. Tractors Export, Moscow, AIR 1970 SC 1168, and Prakash Chand Agarwal v. Hindustan Steel Ltd. AIR 1971 SC 2319. By the order sought to be appealed against there has not been any adjudication by the learned single Judge upon the merits of the second appeal. The second appeal is still a live proceeding pending before this court and the points arising for determination therein are yet to be adjudicated upon. Such being the petition, it is not possible to regard the order sought to be appealed against as a ‘judgment’ within the meaning of that expression as used in cl. (iii) S. 5 of the Act.”
In this context, it is useful to remember what is a (final) “judgment or order”. In Mohammad Amin Brothers Ltd. v. Union of India AIR 1950 FC 77, B.K Mukherjea, J. observed at P. 79:
“It has been held by this Court that the test for determining the finality of an order is, whether the judgment or order finally disposed of the rights of the parties. To quote the language of Sir George Lowndes in Abdul Rahman v. D.K Cassim and Sons, 60 Ind App 76 AIR 1933 PC 56:
“the finality must be a finality in relation to the suit. If after the order the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it.”
The fact that the order decides an important and even a vital issue is by itself not material. If the decision on issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order.”
These observations were quoted with approval by a Constitution Bench of the Supreme Court of India in Tarapore & Co., Madras v. Tractors Export, Moscow AIR 1970 SC 1168 at p. 1170. See also Prakash Chand Agarwal v. Hindustan Steel Ltd. AIR 1971 SC 2319. A recent unreported Division Bench decision of this Court in A.S No. 17 of 1978 and C.M.A No. 185 of 1984 dated 26-10-1984 since reported in AIR 1985 Ker 134 particularly para 26 thereof — is instructive in the matter.
4. Considered in the light of the above decisions, however wide the expression ‘Judgment or Order’, occurring in S. 5(1) of the Kerala High Court Act, 1958, may be, we are of opinion that an appeal from the judgment or order of a single Judge will lie to a Bench of two Judges, only if the judgment or order is “final”. “Procedural orders and interlocutory orders” will not be within the sweep of S. 5(i) of the Act. The order under appeal does not finally dispose of the matter. It is not a final order at all. The portions extracted in para 1 here in above will show that only an interim order has been passed or direction has been given in a pending Original Petition. The order sought to be appealed against does not finally adjudicate any question that is posed or arise for consideration in the Original Petitions. The Original Petitions are still live proceedings pending in this Court and the points at issue are yet to be adjudicated. The order sought to be appealed against has not finally disposed of the rights of the parties. We hold that, in the circumstances, this writ appeal is not maintainable under S. 5(i) of the Kerala High Court Act, 1958. In this view of the matter, we do not propose to go into the merits of the order sought to be appealed against. So also, the petition filed for stay of the operation of the order of the learned single Judge dt. 20-11-1984 is not maintainable and so does not merit any consideration.
We hold that the Writ Appeal is not maintainable. Order accordingly.
Writ appeal dismissed.
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