Sarjoo Prosad, J.:— This is an application for leave to appeal to the Supreme Court from a decision of this Court arising out of a reference under section 21(3) of the Bihar Sales Tax Act, 1944 (Bihar Act VI of 1944).
The matter was at first placed for hearing before Reuben and Das, JJ. Their Lordships were agreed, that if article 133 of the Constitution of India applied, leave to appeal should be granted under, clause (1), sub-clause (c) of that Article. There was however, a difference of opinion between them as to whether the order of this Court from which the right of appeal was claimed is or is not a ‘judgment’ within the meaning of Article 133. The further question which arose for consideration by them was whether the decision in question related to or was a decision in a ‘Civil proceeding’ under the said Article. On this point they doubted the correctness of the decision, of this Court in Federal Court Appeal no. 71 of 1948 in which leave was granted by a Division Bench in a Bihar Sales Tax Act case on the assumption that the proceeding was a Civil proceeding. Reuben, J. was of the view that the decision of this Court against which the present application is directed was not a decision in a ‘Civil proceeding’ as contemplated by article 133 of the Constitution Act. Das, J. was inclined to the same view; but as both of their Lordships entertained doubt about the correctness of the aforesaid order in Federal Court Appeal no. 71 of 1948 granting leave to appeal, they suggested that the matter should be referred for disposal to a larger Bench. Accordingly the matter has been placed before us.
Mr. P.R Das appearing on behalf of the applicant has conceded that the application for leave to appeal in the present case does not fall under sections 109 and 110 of the Code of Civil Procedure because the decision in question is neither a decree nor a final order coming under any of the said provisions. He also concedes that he has no right of appeal under the Letters Patent of this Court. He however, contends and very strongly contends that he is entitled to appeal under article 133 of the Constitution Act and leave to appeal should, therefore, be granted to him.
article 133 of the Constitution of India provides that—
“an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies—
(c) that the case is a fit one for appeal to the Supreme Court”.
(I have omitted the irrelevant portions of the Article.) It would, therefore, appear from the above that the two essential requisites of the Article in question are (1) that the appeal should be from any judgment, decree or final order and (2) that the said judgment, decree or final order must have been passed in a Civil proceeding. It is therefore, to be determined whether these two requisites of the Article have been satisfied before the applicant can be held entitled to a right of appeal to the Supreme Court. As I have stated above, Reuben, J. was definitely of the view that the decision of this Court from which the appeal is sought to be preferred does not fulfil either of these requirements. Das, J. on the contrary, was of the view that it was a judgment and fulfils the first requirement but is doubtful in regard to the second requirement. His own view seems to be that it did not relate to a ‘Civil proceeding’ though he felt some difficulty on account of the order of a Division Bench of this Court passed in Federal Court Appeal no. 71 of 1948 following a Full Bench decision of the Lahore High Court in Feroze Shah v. The Commissioner of Income-tax. The net result is that both the learned Judges were of the opinion that the essential conditions of Article 133 were not fulfilled. The coexistence of the two requisites being essential as enjoined by Article 133, the application for leave to appeal should have been dismissed by their Lordships. The reference to this Bench, however, appears to have been necessitated merely because of the Division Bench order in Federal Court Appeal no. 71 of 194-8. Mr. P.R Das for the applicant did not seriously press for our consideration the correctness of that order. He conceded that the said order had been passed at a time when the Constitution Act was not in force and he could not rely upon it in support of his present application for leave. My learned brother Reuben, J. also observes that “the decision in Federal Court Appeal no. 71 of 1948 is clearly distinguishable and Mr. P.R Das has not pressed his application as one under the Letters Patent”. There was, therefore, no further point to be considered. It is necessary to mention in this context that the Supreme Court has since decided the appeal in which leave had been granted by this Court in Federal Court Appeal no. 71 of 1948. I will have occasion to refer to this case at a later stage, but it may be sufficient to point out that the Supreme Court approved of the decision of this Court in Sri Mahanth Harihar Gir v. Commissioner of Income-tax, Bihar and Orissa which refused to accept the view taken by the Full Bench of the Lahore High Court.
Mr. P.R Das for the applicant, however, urges that it should be held in disagreement with Reuben, J. and in agreement with Das, J. that the decision of this Court from which the appeal is sought to be preferred is a judgment, and that it should be also held in disagreement with both the learned Judges that the decision in question did arise out of a Civil proceeding. As elaborate arguments have been advanced at the Bar, I will deal with both these arguments separately. I may, however, say at once that I feel no hesitation in agreeing with my learned brother Reuben, J. as to his decision on both the points canvassed before us. In doing so, I find that whatever doubts I may have had in the beginning have been more than dispelled and dissipated not only by the decision of the Judicial Committee in Tata Iron and Steel Company v. Chief Revenue-Authority Bombay on which Reuben, J. relies, but also, as I shall presently show, by a number of other authoritative pronouncements in all of which the same meaning of the, term ‘judgment’ has been consistently adopted. In order, however, to appreciate the legal aspect of the matter, it would be just as well to refer briefly to some of the salient facts giving rise to this application for leave.
At the instance of the applicant who is also the assessee, this Court called upon the Board of Revenue to state a case in regard to certain points formulated by this Court. This was done under authority of section 21(3) of the Bihar Sales Tax Act, 1944 (Bihar Act VI of 1944), the relevant taxing statute. The Board of Revenue accordingly made a reference to this Court on those points of law affecting the assessment of the applicant during the period running from the 1st of October 1944 to the 31st of March, 1945. The accepted gross turnover of the assessee during this period was Rs. 3,41,98,000. The petitioner claimed deduction under section 5, sub-section (2) clause (a)(v) of the taxing Act in respect of a turnover of Rs. 2,93,15,000. This clause provides that the assessee is exempted from liability to pay sales tax on turnover derived from
“the sales of goods which are shown to the satisfaction of the Commissioner to have been despatched by or on behalf of, the dealer to an address outside Bihar.”
The exemption was claimed in respect of goods despatched by the assessee Company to an address outside Bihar though the sale itself had been completed in this province.
This reference under section 21(3) of the taxing statute was first heard by my learned brother Das, J. and myself, and as there was a difference of opinion between us in regard to this deduction claimed by the assessee, it was referred to my learned brother B.P Sinha, J. who by another line of reasoning arrived at the same conclusion as myself. On the facts we were all agreed that the transactions amounted to sales, and that the sales were completed and the property in the goods had passed to the vendee before the despatch of the goods outside the province, Das, J. considered that the physical despatch of the goods by the assessee was all that was contemplated by the relevant clause of the taxing Act, and, therefore, the assessee was entitled to the deduction; whereas my own view was that the sale having been completed in this province before the despatch of the goods, and the title being no longer in the vendor, the exemption clause could not operate to the benefit of the assessee Inasmuch as the taxing statute operated on all sales of goods in the province. In my opinion, the exemption clause applied only with reference to sales of goods which were despatched by the dealer to an address outside the province, and in which the dealer retained a title in the goods before he despatched them. B.P Sinha, J. held that the clause laid stress on the Commissioner being satisfied as to the despatch being by the dealer or otherwise, and the High Court was bound to accept the finding of the Commissioner on the point that the despatch was on behalf of the vendee. Thus the ultimate effect of these decisions was that all the points on which the Board of Revenue had been called upon to state a case under section 21(3) of the Act were answered against the petitioner. It is against this decision of the Court that the petitioner has presented the above application for leave to appeal to the Supreme Court.
Mr. P.R Das argues that the decision given by this Court under section 21(5) of the taxing statute is a judgment inasmuch as that sub-section itself provides that the High Court on the hearing of a reference “shall decide the question of law” referred to and “shall deliver its judgment” which it shall send to the Board of Revenue “and the Board shall dispose of the case accordingly”. Mr. Das, therefore, urges that this decision of the Court being a ‘judgment’ as provided by section 21(5) of the taxing statute, it must be held to be appealable under article 133 of the Constitution Act which does not speak of any final judgment but of “any judgment, decree or final order”. Here he contrasts the language, of clause 31 of the Letters Patent which speaks of “any final judgment, decree or order of the High Court”. According to the learned Counsel a judgment in order to be appealable need not be a ‘final judgment’, and even if it is of an interlocutory character, it would-still be appealable as the right of appeal appears to have been enlarged under article 133 of the Constitution Act by dropping the word ‘final’ before ‘judgment’. He also points out that the word ‘final’ has been used in that Article with reference to an ‘order’ but not with reference to a ‘judgment’, and from this he submits that it was never intended that the judgment from which the petitioner has a right of appeal must necessarily be in the nature of a final judgment.
In order to understand the import of the term ‘judgment’ Reuben, J. relied upon a decision of the Privy Council in Tata Iron and Steel Company v. Chief Revenue-Authority, Bombay (supra). The decision, in consonance with old English precedents, adopts the meaning of the term ‘judgment’ which in legal phraseology has been all along attributed to it. I do not propose to emcumber my discussion of the subject with long quotations from the aforesaid decision specially when the case has been succinctly analysed by my learned brother Reuben, J. But I cannot help referring to a passage from the judgment of Lord Esher which the Privy Council has quoted with approval and which has been so often quoted in Indian decisions. The passage runs as follows:
“In the same case Bowen, L.J says there is an inherent distinction between judgments and orders, and that the words ‘final judgment’ have a professional meaning; by which expression I think he meant to say as Cotton, L.J had previously said, that a ‘judgment’ is a decision obtained in an action; and if that was his meaning, both these learned Lords Justices gave judgment to the same effect, and Fry, L.J agreed with him. A ‘judgment,’ therefore, is a decision obtained in an action, and every other decision is an order……………That is, in my opinion, a proper distinction……………”
Following the above distinction the Privy Council held:
“This decision clearly establishes that the decision and an order made by the Court under section 51 of the jurisdiction cannot be held to be a ‘final judgment’ within the meaning of clause 39 of the Letters Patent, since there is nothing to show an intention in the year 1862 to use those words in a sense more extended than their legal sense.”
I may observe in the context that clause 39 of the Letters Patent under consideration by the Privy Council corresponds to clause 31 of the Letters Patent of this Court. Their Lordships further pointed out the danger of confusing the meaning of the expression ‘judgment’ in a popular or loose sense with the ‘professional’ or legal sense of the term. I will quote their own words:
“The word ‘judgment’ is indeed popularly used in many different senses, as when one says a certain man is a man of sound judgment, meaning that he is possessed of the intellectual faculty of deciding rightly on fact or circumstances, or where even in legal matters the expression of the opinion formed in a case by a judge who dissents from his colleagues is commonly called his judgment, though it can have no effect whatever on the determination of the suit or action in which it is delivered.”
Therefore, the use of the term ‘judgment’ or ‘final judgment’ in the eye of law does not bear any different significance, and the use of the word ‘final’ as Qualifying ‘judgment’ is merely ex cautela. It is in this orthodox and juristic sense that the term ‘judgment’ appears to have been used in sections 205 and 206 of the Government of India Act of 1935 or for the matter of that in Articles 132, 133 and 134 of the present Constitution of India.
Mr. P.R Das, however, seeks to distinguish the above decision of the Privy Council in Tata Iron and Steel Company (supra) in two ways. He contends in the first place that the decision is based upon the language of clause 39 of the Letters Patent which, used the expression ‘final judgment’. If I may say so, this was the main point of distinction pressed by Mr. Das which found favour with the other learned Judge. The other point of distinction was sought to be evolved by the learned Counsel out of a suggestion which fell from one of us in course of his reply to the arguments of the learned Government Pleader. The point is that under the Income-tax Act of 1918, there was no power in the High Court to call upon the taxing authorities to state a case and that, therefore, the High Court in deciding the points of law referred to it by the revenue-authorities acted merely in an advisory capacity. It is for this reason that it was suggested that the judgment pronounced by the High Court was not a judgment in the real sense of the term and the observations of the Judicial Committee should be confined only to that context.
It is true that under the law of Income-tax in India as it now stands or for the matter of that under section 21(3) of the Bihar Sales Tax Act, the High Court is also empowered to call for a reference from the Revenue-authorities. This is what was done in the present case; but this factor to my mind does not improve the position and does not lend any additional finality to the judgment which the High Court comes to pronounce on the hearing of the reference. Whether the Revenue-authorities state a case to the High Court on certain points of law arising out of their judgment or the High Court calls upon them to state a case on such points of law, in either event the High Court after the hearing of the case shall “deliver its judgment” and “shall send to the Board of Revenue a copy of such judgment” and “the Board shall dispose of the case accordingly”. The position was exactly the same under section 51 of the Income-tax Act of 1918 which came in for consideration by the Privy. Council. If, therefore, the High Court was then held to be acting in an advisory capacity in delivering its judgment, the capacity of the High Court is not altered when acting under section 21(5) of the Bihar Sales Tax Act of 1944. That the aforesaid change in the law has not affected the function of the High Court in delivering its ‘judgment’ on such references is clear from another decision of the Judicial Committee in Raja Bahadur Sir Rajendra Narayan Bhaj Deo v. Commissioner of Income-tax, Bihar and Orissa. In that case the High Court had called for a reference under section 65(3) of the Income-tax Act from the Revenue-authority and answered the points of law against the assessee who obtained special leave to appeal from the judgment of the High Court. The Judicial Committee, while disposing of the appeal, observed:
“The function of the High Court in cases referred to it under section 66 of the Act is advisory only and is confined to considering and answering the actual question referred to it.”
This is exactly the function under section 21(5) of the Sales Tax Act which says:
“The Hisrh Court upon the hearing of any such case shall decide the question of law raised thereby,………………”
(Italics are mine.)
In my opinion, there is no substance at all in this ground of distinction.
The other point of distinction, namely, that the decision in Tata Iron and Steel Company (supra) being based only upon the language of clause 39 of the Letters Patent can have no application to a case where the right of appeal is claimed under article 133 of the Constitution Act is equally without merit. True it is that the right of appeal in that case was claimed under clause 39 of the Letters Patent where the expression ‘final judgment’ occurs but the decision proceeds not so much upon the language of clause 39 as upon the language of section 51 of the Income-tax Act which uses the word ‘judgment’ and which is very similar to section 21(5) of the Sales Tax Act.
The question which the Judicial Committee posed for consideration was “what is the nature and character of the acts which section 51 of the Income-tax Act authorises and empowers the High Court to do”. It then proceeds to analyse the various provisions of section 51 of the Income-tax Act which under sub-section 3 provides “that on the hearing of the case the High Court shall ‘decide’ the questions raised thereby, and shall ‘deliver judgment’ thereon containing the grounds on which the decision is founded and shall send to the Revenue-authority a copy of this judgment under the seal of the Court and the signature of the Registrar, and the Revenue-authority shall dispose of the case accordingly………”. In view of this provision the Privy Council observed as follows:
“This last provision merely means that the Revenue Officer, in proceeding with the work in the course of which he was engaged when the question referred arose, shall be guided by the decision given, and shall make his assessment accordingly—the ultimate result being that he assesses the tax-payer at an amount which in his instructed opinion he judges to be right…………The decision of the High Court does not in any way enforce the discharge of that liability. It would appear clear to their Lordships that the word ‘judgment’ is not here used in its strict legal and proper sense.”
At another place with reference to such a judgment the Judicial Committee says:
“It amounts only to a ruling that a certain deduction claimed by a tax-paper to be allowed from the sum for which he has been already assessed to income-tax is not permissible”,
and then the judgment finally concludes with these pertinent observations:
“It would appear to their Lordships that having regard to the authorities cited, and for the reasons already stated, the decision, judgment or order made by the Court under section 51 of the Income-tax Act in this case, was merely advisory, and not in the proper and legal sense of the term final, and thus so far as these considerations are concerned that the ‘appeal is incompetent.”
These observations apply with equal force to the language of section 21(5) of the Bihar Sales Tax Act, and it is perfectly clear from these observations that any judgment which the High Court pronounces in regard to the questions of law referred to it by the Revenue-authorities is not a judgment in the technical sense of the term but merely a sort of opinion or advice given to the Revenue-authorities by which advice undoubtedly on those questions of reference the Revenue-authorities are governed and they have to mould their order of assessment in the light of the advice so tendered by the High Court.
It is significant to note that in the decision in question the Privy Council relied upon the observations of Lord Esher in the case of Onslow v. Commissioners of Inland Revenue which arose under the Stamp Act, 1870 (34 and 35 Vict. C. 7). Under section 19 of the said Statute a person dissatisfied with the order of the Commissioners could appeal to the Court of Exchequer and require the Commissioners to state a case upon the points on which the opinion of the Court was required and the Commissioners were bound to do so. On the hearing of the case the Court had the power to determine the questions submitted, and if the instrument in question in the opinion of the Court was chargeable with any duty, the Court could assess that duty. If, on the other hand, the Court decided that the Commissioners' assessment is erroneous, any excess of duty which may have been paid thereunder or any penalty in respect thereof could be ordered by the Court to be refunded to the appellants with costs incurred in relation to the appeal. Under rule 15 of the Supreme Court rules the question arose whether such an order of the Court of Exchequer was a judgment or an order, and, I have already shown, it was, held that the order in question was not a ‘judgment’, and, therefore, special leave had to be obtained in order to enable the party to appeal within the meaning of the rule. Sections 56 to 59 of the Stamp Act (Act II of 1899) also provide for such references to the High Court to be made by the Revenue-authority, and the language of section 59 also shows that the High Court upon the hearing of any such case shall decide the question raised thereby and shall deliver its ‘judgment’ thereon containing the grounds on which such decision is founded; and the Court shall then send a copy of such judgment to the Revenue-authority by which the case was stated, and the said authority shall dispose of the case conformable to such a ‘judgment’. Here also although the word ‘judgment’ has been used, I do not know of any case where a party has been held entitled to prefer an appeal to the Privy Council, against a judgment of this character, nor, in my opinion, such an appeal could be entertainable the Stamp Act itself not having provided for such a contingency, because a judgment of such a nature is not a ‘judgment’ in the real sense of the term although it has its finality in respect of the points which are stated to the Court for its decision.
The learned Government Pleader has further drawn our attention to the fact that Articles 132 and 133 of the Constitution Act are very much on the same, lines as sections 205 and 206 of the Government of India Act, 1935. In sections 205 and 206 of the Government of India Act the expression ‘judgment, decree or final order’ also, occurs, and the decisions bearing on the interpretation of these sections of the Government of India Act a fortiori must have an important bearing upon the interpretation of Articles 132 and 133 of the Constitution Act. He points out that the language of Articles 132 and 133 in using the expression ‘judgment, decree or final order’ is not “altogether new” and it must be assumed that when the Constitution of India was framed, the framers of the Constitution must have been conscious of the law as it then stood. Indeed, my learned brother Das, J. has very rightly pointed out that “it must be taken that the Constituent Assembly which made the Constitution, were aware of the previous state of the law and advisedly dropped the word ‘final’ before the word ‘judgment’.” With great respect, I entirely endorse this view; but it appears that the attention of my learned brother was not drawn to the language of sections 205 and 206 of the Government of India Act, 1935, and the various decisions bearing on the point which support the conclusion that the word ‘judgment’ as used in the Government of India Act was used in the technical sense as understood in the English precedents; namely, in the sense in which Lord Esher understood it and Lord Atkinson approved of it in the aforesaid decision of Tata Iron and Steel Company (supra).
I shall now refer to one or two cases on the point. The first is the decision in S. Kuppuswami Rao v. The King. There the question arose on the interpretation of section 205 of the Government of India Act in connection with a criminal appeal in which the High Court had granted a certificate for leave to appeal to the Federal Court. Kania, C.J in dealing with the preliminary objection as to the maintainability of the appeal observed that in order to determine that the Court had jurisdiction under the provisions of section 205, it was necessary “to ascertain whether the appeal is really from judgment, decree or final order of the High Court”. He then considered the question as to what was the meaning of ‘judgment, decree or final order of a High Court’ within the meaning of the section, and following the decisions in various English and Indian precedents his Lordship held that it was not a final judgment. His Lordship next proceeded to ascertain the meaning of the words ‘judgment and decree’ and referred to the historic observations of Lord Esher, Master of the Rolls, in the case of Onslow v. Commissioners of Inland Revenue (supra). Then his Lordship observes:
“These and other English decisions make it clear that in England when the word judgment or decree is used, whether it is preliminary or final, it means the declaration or final determination of the rights of the parties in the matter brought before the Court.”
His Lordship further observes:
“In our opinion, the decisions of the Courts in India show that the word ‘judgment’, as in England means the determination of the rights of the parties in the matter brought before the Court.”
An argument was advanced before their Lordships, as it has been advanced before us, that clause 39 of the Letters Patent of the High Courts of Calcutta, Bombay and Madras provided for appeals to His Majesty in Council from ‘any final judgment, decree or order’, and it was urged that in the absence of the qualifying word, ‘judgment’ in section 203(1), Constitution Act, must be held to include a preliminary or interlocutory judgment, and that the order now under appeal fell under that category. His Lordship disposed of the argument thus:
“We are unable to accede to this view. In our opinion, the term ‘judgment’ itself indicates a judicial decision given on the merits of the dispute brought before the Court.”
It has been argued that this decision being a decision in a criminal case can be no guide to us in the interpretation of article 133 of the Constitution Act. This contention does not appeal to me; nor did it appeal to their Lordships who said:
“The words are used in section 205(1), Constitution Act, and impart jurisdiction to the Federal Court to entertain appeals both in civil and criminal matters. As the same words give jurisdiction to the, Court in both classes of cases, it will be improper to construe them in a certain way when applicable to appeals in civil matters and give them a wider meaning when considered in connection with appeals, from criminal proceedings. The words judgment and final order, in connection with civil appeals, have received a definite judicial interpretation. In connection with civil appeals to this Court therefore that interpretation has to be accepted. If so, the same interpretation has to be accepted in case of appeals from criminal proceedings brought to this Court under, section 205(1), Constitution Act.”
The words ‘judgment, decree and final order’ are common to both Articles 132 and 133 of the Constitution, and it cannot be doubted that Article 132 applies to all proceedings including ‘civil’ and ‘criminal’.
To a similar effect is another decision of the Federal Court in Mohammad Amin Brothers, Ltd. v. The Dominion of India. This appeal did not arise out of a criminal proceeding but was directed against an order of the High Court setting aside an order of another learned Judge of the same Court directing the compulsory winding up of the appellant Company. A preliminary objection was raised that the appeal was incompetent under section 205(1) of the Government of India Act, 1935, under which the High Court had granted a certificate. The question which therefore arose was if the decision of the High Court appealed from did or did not amount to “a final order, judgment or decree”. B.K Mukherjea, J., who delivered the judgment of the Court, observed that all the relevant authorities bearing on the question had been reviewed by the Court in the recent pronouncement of Kuppuswami Rao v. The King (supra), and the law on the point so far as that Court was concerned seemed to be well settled. His Lordship observed:
“The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an 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.”
I should observe that the effect of the High Court order which was appealed against in that case was to keep the application for winding up on the file to be taken up for hearing after the final determination of certain income-tax and excess profits tax cases which were then pending. It was lastly contended before their Lordships that although the order in question may not have the effect of a final order “it could still be regarded as a judgment”. and as such coming within the purview of section 205 of the Government of India Act. This argument also did not find favour with their Lordships and they disposed of the same in the following words:
“In English Courts the word ‘judgment’ is used in the same sense as a ‘decree’ in the Civil Procedure Code and it means the declaration or final determination of the rights of the parties in the matter brought before the Court; vide S. Kuppuswami Rao v. The King. According to the definition given in the Civil Procedure Code, a judgment is the statement of reasons given by a Judge on which a decree or order is based. If the order which is made in this case is an interlocutory order, the judgment must necessarily be held to be an interlocutary judgment and the collocation of the words ‘judgment, decree or final order’ in section 205(1), Government of India Act, makes it clear that no appeal is provided for against an interlocutory judgment or order.”
Mr. P.R Das has frankly conceded that the judgment in the present case was in the nature of an interlocutory judgment, but he argued, as it was argued on behalf of the appellant before their Lordships, that it was nonetheless a ‘judgment’ because it finally disposed of all the points of law referred to this Court by the Revenue-authorities. Having regard to these decisions, it is now too late to contend that a judgment of the character with which we are concerned is a ‘judgment’ within the meaning of article 133 of the Constitution Act. I have no doubt that the term ‘judgment’ in Article 133 has been used in the same sense as it was used in section 205 of the Government of India Act and the dropping of the word ‘final’ before the word ‘judgment’ did not make any difference whatsoever.
It is, therefore, unnecessary for me to refer to several other decisions on which reliance has been placed by Mr. P.R Das. There has been undoubtedly a great deal of controversy over the meaning of the word ‘judgment’ as used in the Letters Patent of the Indian High Courts. The decision of Page, C.J in the Full Bench case of In re Dayabhai Jiwandas v. A.M.M Murugappa Chettiar is remarkably refreshing for its historic details, its originality of thinking and boldness and clarity of expression. In that case, after a close analysis of numerous authorities on the point, his Lordship fell back upon the meaning which was attached to the word in the English precedents and held that the word ‘judgment’ in the Letters Patent meant a decree in a suit by which “the rights of the parties at issue in a suit are determined”. In doing so, his Lordship observed as follows:
“Moreover, the view that we take of the meaning and effect of the term ‘judgment’ in the Letters Patent is in consonance with the opinion that has been expressed by the Judicial Committee of the Privy Council on no less than three occasions; and, I apprehend, it is not open to the Courts in India to construe the term ‘judgment’ as used in the Letters Patent in any other sense.”
His Lordship then referred to the observations of Sir John Edge in Sevak Jeranchod Bhogilal v. The Dakore Temple Committee and the observations of Lord Atkinson in Tata Iron and Steel Company(supra) which I have already discussed above. He also referred to another decision of the Judicial committee in Sabitri Thakurain v. Savi(3) and then summed up in these words:
“It appears, therefore, that the Judicial Committee in three cases have expressly and plainly laid down that the term ‘judgment’ in the Letters Patent of the High Courts means ‘decree’ and not ‘order’ in the strict legal sense in which those terms are understood and defined.”
Page, C.J has very rightly conceded that the construction which in the opinion of the Full Bench was placed upon the term ‘judgment’ in the Letters Patent had not found favour in other High Courts in India. But at the same time in my opinion, his Lordship was justified in asserting that this was of no consequence, when he found ample support for his construction on the repeated pronouncements of the Judicial Committee based on English precedents as to the right and technical meaning of the word ‘judgment’. I am not here unmindful of the doubt expressed by Rankin, C.J in Brajagopal Roy Burman v. Amar Chandra Battacharjee(4) as to whether for the purposes of interpreting section 15 of the Letters Patent “the correct technical use of the word ‘judgment’ in England is safe guide”. Speaking for myself, with great respect, I do not see why it should not be so especially when the Judicial Committee itself in dealing with various cases on the point from Indian Courts arising under the Letters Patent has repeatedly, expressed itself in consonance with the English precedents. Instead of being tossed about on the waves of doubts and uncertainties in a vast sea of literature on the subject, I consider it safe to adhere to old and well-established moorings. The matter, as I have shown appears now to be concluded by the view taken in the Federal Court decisions mentioned by me above pertaining to the construction of the very same expression ‘judgment, decree or final order’ used in section 205 of the Government of India Act of 1935.
Fortunately for us there is another very recent decision of the Supreme Court which has a direct bearing upon the interpretation of section 21 of the Bihar Sales Tax Act, and the meaning of the word ‘judgment’ as used in that section. I refer to the decision of Seth Premchand Satramdas v. The State of Bihar. I have already shown that the decision relates to the Federal Court Appeal no. 71 of 1948 in which leave had been granted by this Court. The assessee-appellant in that case had applied to the High Court for requiring the Board of Revenue to state a case but his application was summarily rejected. He then applied for leave to appeal to the Federal Court which the High Court granted following the decision 3 of a Full Bench of the Lahore High Court in Feroze Shah Kaka Khel v. Income-tax Commissioner, Punjab and North-West Frontier Province, Lahore (supra). The said appeal from the judgment of the Lahore High Court was dismissed by the Privy Council on merits though the Privy Council did not decide the objection as to competency of the appeal which it characterised to be a serious objection. At the commencement of the hearing of the appeal before the Supreme Court, a preliminary objection was raised that the appeal was not competent and their Lordships upheld the objection as well-founded. In that connection their Lordships referred with approval to a Special Bench decision of this Court in Sri Mahantk Harihar Gir v. Commissioner of Income-tax, Bihar and Orissa where it was held on an exhaustive review of various authorities that “no appeal lay to His Majesty in Council under clause 31 of the Letters Patent of the Patna High Court from an order of the High Court dismissing an application under section 86(3) of the Income-tax Act (a provision similar to section 21 of the Act before us) to direct the Commissioner of Income-tax to state a case Their Lordships then proceeded to construe section 21 of the Bihar Sales Tax Act and held as follows:—
“All that the High Court is required to do under section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Board's order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties; and the final order in the matter is the order which is passed ultimately by the Board of Revenue. This question has been fully dealt with in Tata Iron and Steel Company v. Chief Revenue-Authority, Bombay (50 I.A 212), where Lord Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight and the Tabernacle Permanent Building Society (1892, 2 Q.B 613 at 617):
‘In the case of Ex parte County Council of Kent where a statute provided that a case might be stated for the decision of the Court it was held that though the language might prima facie import that there has to be the equivalent of adjudgment or order, yet when the context was looked at it appeared that the jurisdiction of the Court appealed to was only consultative, and that there was nothing which amounted to a judgment or order.’”
Their Lordships also held that the decision in question was not given by the High Court in the exercise of either original or appellate jurisdiction because the High Court acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act, and they held that “the crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate”. Having regard to these categorical observations it is beyond any shadow of; doubt that the judgment of the High Court pronounced on such references under the taxing statute cannot be called such a ‘judgment’ as to give the, applicant a right of appeal under Article 133 of the. Constitution Act. Mr. P.R Das further relied upon a decision in P.A Raju Chettiar v. Commissioner of Income-tax, Madras. This decision no doubt supports Mr. Das; but, in my opinion, the decision of the Supreme Court now puts the matter beyond the pale of controversy.
On the other question whether the decision from which the petitioner seeks to appeal to the Supreme Court arises out of a ‘civil proceeding’, both Reuben and Das, JJ. seem to be in agreement that it did not and the contention of Mr. P.R Das that a “civil” proceeding means and includes all proceedings except those that are criminal does not appear to have found favour with their Lordships. Indeed, as Reuben, J. observed, Article 132 itself contemplates that the High Court may exercise jurisdiction in ‘other proceedings’ besides ‘civil proceedings’ and ‘criminal proceedings’ and the special, jurisdiction of the High Court under the taxing Act may be one instance of such ‘other proceedings’. Therefore, it follows that ‘civil proceedings’ cannot be held to include all proceedings save ‘criminal proceedings’. The learned Government Pleader has contended that proceedings under the taxing statutes stand entirely on a different footing inasmuch as the ruling authority in such cases, proceeds to levy taxes in exercise of its sovereign rights. The proceeding, therefore, under the taxing statute cannot be regarded as a ‘civil proceeding’. He relies upon a decision of the Judicial Committee of the Privy Council in Raleigh Investment Co., Ltd. v. The Governor-General in Council where it was pointed out that a jurisdiction to question the assessment of income-tax otherwise than by use of the machinery expressly provided by the Act would appear to be inconsistent with the statutory obligation to pay, arising by virtue of the assessment. Their Lordships did not lend countenance to the claim of the assessee to question the assessment in a civil court on the ground that the assessing officer had taken into account an ultra vires provision of the taxing statute. Their Lordships observed that the Act contained the machinery which enabled an assessee to effectively raise the question whether or not a particular provision of the Act bearing on the assessment made upon him is ultra vires, and the assessee should avail himself of that provision for getting redress against the order of assessment and could not institute a civil suit for the purpose. It may be that this decision may in some respects have to be reconsidered in the light of the fundamental rights vouchsafed under the Constitution Act. But at any rate it is quite clear from this decision that the proceedings under the taxing statutes are something quite different from ‘civil proceedings’. Das, J. if I may say so with respect, has very aptly referred in this context to the decisions of the Supreme Court in Pritam Singh v. The State and Bharat Bank, Ltd., Delhi v. The Employees of the Bharat Bank which also support the same inference. The provisions of Article 136 of the Constitution Act indicate that the Supreme Court can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. I agree with Das, J. therefore that the observations made in those cases seem to imply that income-tax cases and sales tax cases are not ‘civil proceedings’ within the meaning of the Constitution Act.
The result is that the application before us does not fulfil either of the two requirements of article 133 of the Constitution Act. It may be that, as in the present income-tax law a right of appeal has been specifically provided for, the State Government or the Union of India may provide in the taxing statute itself dealing with the levy of sales tax for a right of appeal to the Supreme Court, but so long as it is not done, a right of appeal cannot be claimed as a matter of course; and it is impossible for me now to attach any different meaning to the term ‘judgment’, as used in article 133 of the Constitution Act, than what has been attributed to it consistently by the various authoritative pronouncements which I have discussed above. For these reasons, I hold that the petitioner has no right of appeal to the Supreme Court, and, therefore, leave to appeal cannot he granted. The application fails and must be dismissed with costs; hearing fee five gold mohurs.
Rai, J.:— I entirely agree with the Hon'ble Sarjoo Prosad, J. I have nothing more to add.
Shearer, J.:— The marginal note to article 133 of the Constitution is
“Appellate jurisdiction of Supreme Courts in appeals from High Court in regard to civil matters”.
This is very similar to the marginal note to article 73 of the Australian Constitution Act, 1900, which is “Appellate jurisdiction of High Court”. Whereas, however, the opening words of article 73 of the Australian Constitution Act, 1900, are:—
“The High Court shall have jurisdiction, with such exceptions end subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders, and sentences.”
the opening words of article 133(1) are
“An appeal shall lie to the Supreme Court from any judgment decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies.”
It is thus clear that article 133(1) of the Constitution confers, as section 205 of the Government of India Act, 1935, conferred, a general right of appeal. In England, where civil actions were until very recent times ordinarily tried with the aid of a jury, the word “judgment” does not mean and has never meant what it means in this country. A judgment in England was and still is the formal order drawn up at the conclusion of a trial embodying the decision of the Court. To be more strictly accurate, it was originally the formal order drawn up at the conclusion of trials in the Common Law Courts. At the conclusion of trials in the Court of Chancery, the formal order was denominated a decree. When the first of the Codes of Civil Procedure was enacted by the Indian legislature in 1859 the legislature chose to direct that the decisions of civil courts should be embodied in decrees and not in judgments, and it gave to the word “judgment” the meaning which it still has today. In consequence, under that Code and under each successive Code, appeals have lain from decrees or orders but not from judgments. Why is it then that the word “judgment” appears along with “decree” and “order” in section 205 of the Government of India Act, 1935, and in article 133(1) of the Constitution? The answer is, I think, to be found in history. The Judicial Committee of the Privy Council, as it now exists, was constituted in 1844, and section I of 7 and 8 Victoriae, Cap. LXIX, under which it was constituted, enacted:
“That it shall be competent to Her Majesty, by any Order, or Orders to be from Time to Time for that Purpose made with the Advice of Her Privy Council, to provide for the Admission of any Appeal or Appeals to Her Majesty in Council from any Judgments, Sentences. Decrees, or Orders of any Court of Justice within any British Colony or Possession abroad,……. and it shall also be competent to Her Majesty, by any such Order or Orders as aforesaid, to make nil such Provisions as to Her Majesty in Council shall seem meet for the instituting and prosecuting any such Appeals.”
It will be observed that the words used by the Imperial Parliament in 1944 were used by it again in 1900 in enacting section 73 of the Commonwealth of Australia Act and still again in 1935 in enacting sections 205 and 206 of the Government of India Act except that in the latter Act the word “sentence” was for obvious reasons, omitted. There is no doubt, I think, that the words used in the statute of 1844 were used advisedly to embrace every kind of decision. There may in the British Empire, as it existed in 1844, have been colonies in which, the original settlers having carried the Common Law with them, the decisions of the Courts were embodied in formal judgments based on the writs with which, the action was commenced or in the formal decrees in use in the Court of Chancery in England, but in India and in other colonies or dependencies this was certainly not so. That appears to me to be a strong reason for supposing that the word “iudgment” was not, used in section 205 of the Government of India Act, 1935, on which article 133(1) of the Constitution is based, in any narrow or technical or, as it has been called professional sense. In construing to words “any judgment, decree or final order”, which appear in both of them, there are, in my opinion two assumptions which can reasonably and ought to be made. One is that the draftsman of the Government of India Act 1935, was perfectly well aware of the meaning which the word “judgment” had in this country. The other is that, in using the word “judgment”, the draftsman was not using it as synonymous with the word “decree”, but as confuting something which was or might not be either a decree or a final order. It is impossible, and indeed absurd, to suppose that the words “judgment” and “decree” were used in contradistinction to one another and as connoting a decision given, in the one case in the exercise of legal, and in the other in the exercise of equitable, jurisdiction. That being so it appears to me that the words “judgment, decree or final order” must be read together as a single phrase compendiously including every decision except a decision which is an order and is not a final but a preliminary or interlocutory order. It is important to notice that these words occurred not only in section 205 of the Government of India Act, but also in the section immediately following. How, section 206 conferred on the Indian legislature now to abolish the jurisdiction exercised by His Majesty in Council in civil appeals. If the word “judgment” was intended, to exclude a judgment under section 21(5) of the Bihar Sales Tax Act, 1944, it would also have excluded a judgment under section 66A of the Indian Income Tax Act. In other words, while the Indian legislature, in exercise of the power conferred on it by section 206 of the Government of India Act 1935, might have abolished the jurisdiction of His Majesty in Council in every other class of civil appeals, appeals against orders made by the High Court on references under the Indian Income Tax Act would still have lain to the Judicial Committee, and in order to transfer such appeals to the Federal Court, an Act of the British Parliament amending section 206 of the Government of India Act, 1935, would have been necessary. Such a situation could not possibly have been intended. That it was not intended is, I think, made quite clear when one considers the amendment made in section 206 of the Government of India Act, 1935, by the India Provisional Constitution Order 1947. The words “judgment, decree or final order” were retained in the amended section. As, in 1947, the intention of His Majesty in Council in amending section 206 was to enable the Dominion Legislature forthwith to abolish any right of appeal to the Judicial Committee, it is perfectly clear that the British Parliament and also the Government of India considered that the expression “judgment, decree or final order” was wide enough to cover decisions of the High Court on references under section 66 of the Indian Income Tax Act, and, if it is wide enough to cover such decisions, it must also cover decisions under section 21(5) of the Bihar Sales Tax Act, 1944.
In the course of the argument a large number of decisions were cited, but, as the question is one of first impression, these decisions are of no assistance, and it is. I consider, unnecessary to refer to them. Indeed, while decisions as to the construction to be put on section 205 of the Government of India Act, 1935, may be in point, any other decisions cited were not strictly relevant, and to place any reliance on them would be to be in danger of falling into the cardinal error of attempting to construe one document by reference to the manner in which another and possibly similar but, nevertheless, different document has been judicially interpreted. I ought, however, to refer to the decision of their Lordships of the Judicial Committee in Tata Iron and Steel Company, Limited v. Chief Revenue Authority, Bombay. The recent decision of the Supreme Court in Seth Premchand Satramdas v. The State of Bihar, on which much reliance was placed by the learned Government Pleader, merely affirmed the decision of their Lordships of the judicial Committee. In considering the applicability of the decision in Tata Iron and Steel Company, Limited v. Chief Revenue Authority, Bombay, it is necessary to bear in mind what exactly happened in that case. An assessee to income-tax, being dis-satisfied with the assessment made on him, applied to the Chief Revenue Authority to state a case for the consideration of the High Court. The Chief Revenue Authority declined to do so, and, thereupon, the assessee applied under section 45 of the Specific Relief Act to the High Court asking that a writ of mandamus should issue on the Chief Revenue Authority requiring him to do what he had declined to do. This application was successful, and, in response to the writ which was issued, the Chief Revenue Authority stated a case. The decision of the High Court was, however, adverse to the assessee, and the assessee then applied, for and was granted leave to appeal to His Majesty in Council. The ground on which, apparently, leave was asked for and was granted was that the decision of the High Court was “a final judgment…….made in the exercise of original jurisdiction”. When the appeal came on for hearing, it was contended that no appeal lay and that leave ought not to have been granted by the High Court. The expression “final judgment”, which occurs in the Letters Patent, occurs also in the English Bankruptcy Act, and Lord Atkinson, who delivered the judgment of their Lordships, strongly relied on interpretations which had been put on the expression in cases under the Bankruptcy Act. Under that Act a person against whom a final judgment had been obtained and who had omitted to pay the judgment debt within a certain period after a notice had been served on him was deemed to have committed an act of bankruptcy: In ex Parte Chinery the question that arose was whether or not a garnishee order absolute was a final judgment, and in Ex Parte Moore the question that arose was whether a judgment under which costs were awarded and under which also an enquiry had to be made as to damages was a final judgment or merely a preliminary or an interlocutory judgment. It was held that the latter was a final judgment, whereas the former was not, and Bowen, L.J observed in the earlier case that the provisions in the Bankruptcy Act defining acts of bankruptcy should t, construed as strictly as if they had occurred in a section which was defining a misdemeanour, because the commission of an act of bankruptcy entailed a disability on the person who commits it. Lord Atkinson, in following these decisions and pointing out that, technically, in English law a judgment was the decision obtained in an action and that any other decision was an order, did not explain why he considered it necessary to construe the language used, in the Letters Patent with the same strictness as, Bowen, L.J had in a somewhat different case thought desirable. The reason, however, is. I venture to think, reasonably clear on general principle. In Sandback v. North Staffordshire Railway Company, Bramwell, L.J observed: “An appeal does not exist in the nature of things; a right to appeal from any decision of any tribunal must be given by express enactment”. In the British Commonwealth of Nations the Sovereign, as the head of the State, is entitled, except in so far as he has parted with his prerogative right, to entertain appeals against any decision of any tribunal throughout His Dominions. His Majesty parts with; this prerogative right either to entertain or to decline, to entertain an appeal when any statute either expressly bars or expressly confers a right of appeal, the reason why, in such a case, the prerogative right is surrendered, being that His Majesty is an integral part of the legislature which has enacted the statute, and, if assent to the statute is not, as in the case of Acts of the British Parliament, given by His Majesty himself, assent to it is given in His name. The Indian Income Tax Act, 1918, did not confer any right of appeal, nor, on the other hand, did it expressly bar an appeal. The appellant in Tata Iron and Steel Company Limited v. Chief Revenue Authority Bombay, was, therefore, entitled to ask for leave to appeal to His Majesty in Council. In order to avoid the inconvenience which would be caused by requiring every suitor, who desired to appeal to His Majesty in Council, to apply for and obtain leave in London, His Majesty in Council has delegated to various tribunals in His Dominions the power to grant leave to appeal on His behalf. It was commonly said, but incorrectly, that a litigant in India had a right to appeal under the Letters Patent. In constitutional law the real position, in such a, case, was that the High Court had power to grant him leave to appeal. It necessarily followed that, when leave had been granted by a High Court in India, the respondent in the appeal was entitled to contend in London that leave had been wrongly granted. In such a case the onus was on the appellant to show that, in granting him leave, the High Court, had not exceeded the power which had been delegated; to it. That, in my opinion, was why their Lordships of the Judicial Committee took the word “final judgment, decree or order” as having been used in the Letters Patent distributively and why also they, construed each of them strictly. Although, as I have said, Lord Atkinson did not explain why he chose to, interpret the Letters Patent in the manner in which he did, his observation in the earlier part of the judgment that no general right of appeal, such as was, conferred by the Judicature Act, 1873, existed strongly suggests that some such considerations weighed with him. Incidentally it may be observed that the language used in the Judicature Act, 1873, is not dissimilar to that used in section 205 of the Government of India Act, 1935. In construing any Constitution Act, the courts are bound to give it a broad and liberal interpretation. For that reason, the words “judgment”, “decree” and “order” in article 133(1) are not to be construed distributively. Regard must be had to the cumulative effect of them, and the phrase “any judgment, decree or final order made in a civil proceeding” must be regarded as a single compendious phrase, embracing every decision in a civil proceeding which is not a final but is merely a preliminary or an interlocutory order. It is in this manner that the very similar language used in section, 73 of the Commonwealth of Australia Act, 1900, appears to have been construed by the courts in Australia (see Quick and Garran on the Constitution of the Australian Commonwealth, page 741). Apparently, in the Australian Courts while the meaning of the individual words may be looked to in order to appreciate the effect of the whole it is the combined scope of the words to which regard is invariably had. If article 133(1) of the Constitution is construed in this way, then, it appears to me that an appeal now lies against a decision of the High Court given under section 21(5) of the Bihar Sales Tax Act, 1944. The decision is described in the Act itself as a judgment. There is no reason to assume that an appeal does not lie merely because the judgment is one given in exercise of a consultative or advisory jurisdiction. In Onslow v. Commissioners of Inland Revenue, a decision on which much reliance has been placed by the learned Government Pleader, an appeal did lie against such a decision, the only question at issue being whether the decision of the court, against which an appeal was sought to be preferred, was a judgment or an order, the point being of importance as, if the decision was a judgment, an appeal lay, whereas, if it was an order, an appeal was barred by limitation. I said a moment ago that, in my opinion, no decisions were directly relevant except decisions under section 205 of the Government of India Act, 1935, Both parties have relied on two such decisions of the Federal Court—Mohammad Amin Brothers, Ltd. v. The Dominion of India and S. Kuppuswami Rao v. The Governor-General of India. Mr. P.R Das, for instance, says that a judgment under section 21(5) of the Bihar Sales Tax Act, 1944, is, in the words of the learned Chief Justice of India, “a judicial decision given on the merits of the dispute brought before the court”. It is, Mr. Das, says, immaterial that, before an actual assessment can be made, the matter has to go back to the Income Tax Officer. What is material, Mr. Das contends, is that, in making the assessment, the Income Tax Officer is bound by the judgment of the High Court. It is, I must confess, possible to isolate passages in each of the two judgments as supporting the other point of view. It has, however, to be remembered that in both cases the order against which an appeal was sought to be preferred was, quite plainly, a preliminary or an interlocutory order, and the question that really arose was whether or not, although it was a preliminary or an interlocutory order; it might not also be regarded as a judgment. While I feel some difficulty in accepting the contention of Mr. P.R Das that these decisions support his argument, I am also unable to take the view that they can be relied on by the learned. Government Pleader as completely decisive.
The Constitution, it appears to me, proceeds on the assumption that proceedings are either civil proceedings or criminal proceedings. In England proceedings arising out of references made under fiscal statutes are governed by a special procedure and are heard by the King's Bench Division on the revenue side. Nevertheless, they are, I believe regarded as, civil proceedings. I am unable to regard the observation of Fazl Ali, J. in Pritam Singh v. The State, that the Supreme Court can, by virtue of article 136, grant “special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases” as an authority for the proposition that a proceeding on a reference made under the Income Tax Act or under the Bihar Sales Tax Act, 1944, is not a civil proceeding. His Lordship was there merely explaining the scope of the power conferred on the Supreme Court to grant special leave to appeal. For the reasons already given, the British Parliament and the Government of India must have been of opinion that decisions of the High Court on references made under the Income Tax Act were “civil cases” within the meaning of the expression as used in section 206 of the Government of India Act, 1935, and it appears to me necessarily to follow that under article 133 of the Constitution a proceeding arising out of such a reference is a civil proceeding. Reuben, J. has drawn attention to the words “other proceeding” which appear in article 132(1) and to the word “determination” which appears in article 136(1) of the Constitution. These words appear to me to have been inserted pro majore cautela. It is obviously desirable that, when any question as to the interpretation of the Constitution arises, a decision on that question should not have to be postponed because of any doubt arising as to whether the proceeding in which the question arose was neither a civil nor a criminal proceeding. Similarly, it is desirable that there should be no doubt as to the power of the Supreme Court to grant special leave to appeal in any case whatsoever. It has to be remembered that the Constituent Assembly was legislating not for today, nor for tomorrow, but for an indefinite future, and it presumably realised that, at some time or other a question might be raised as to whether a proceeding was or was not a civil proceeding. More particularly, it may perhaps have considered that such a doubt might arise regarding proceedings in connection with one of the writs which the High Courts are empowered to issue under article 226(1). In England, a doubt appears at one time to have arisen as to whether proceedings in quo warranto were civil proceedings, and section 15 of the Supreme Court of Judicature Act, 1884, was, in consequence, enacted providing that they should be deemed to be civil proceedings, whether for purposes of appeal or otherwise. I have read and considered with the care which it deserves the judgment which has been prepared by my learned brother Sarjoo Prosad, J. The difference between us is a difference as to the method of interpretation to be employed. My learned brother adopts the method of interpretation which has been employed in construing the Letters Patent. The Letters Patent are, however, an instrument containing a delegation of power by His Majesty in Council to the High Courts in India, end, in construing such an instrument, it is not merely reasonable but essential that a strict interpretation should be put on the expression “final judgment made in exercise of original jurisdiction”, which expression, taken as a whole, does not, in any case, readily import more than a decision in an action. The constitution of a great people is not to be interpreted in precisely the same manner as a power of attorney which can be cancelled or modified at will. More particularly, is that so when, the provision in it, which is under examination, confers a right on every citizen? Article 133 confers a right of appeal to the highest tribunal in the land. A right of that kind must, in the nature of things, be a restricted right. The first part of the article imposes one restriction, namely, that the decision from which an appeal is sought to be brought is not a preliminary or an interlocutory order, which is what the Federal Court held in the two cases already cited, and the second part of the article imposes another restriction, namely, as to the value of the subject matter and the difficulty or importance of the point of law which arises. Construed in this broad and liberal manner, the petitioner, has now a right of appeal which he did not have previously. When I am, invited, as I have been, by the learned Government Pleader to isolate, as it were, the word “judgment” and to give to it a meaning which in this country is an esoteric meaning, the origin and scope of which I did not myself appreciate until I consulted Seton on judgments and Orders, I must decline to do so on the ground that the Constitution was not the result of a revolution, but the outcome of an orderly progress-towards self-government, that the Supreme Court is the heir of the Federal Court and of the Judicial Committee, that in the Acts of the British Parliament constituting each of these great Tribunals and defining their jurisdiction the word “judgment” was used as part of a comprehensive phrase which, in my opinion, admits of no such construction and that comprehensive phrase has been adopted by the makers of the Indian Constitution. I would myself grant leave to appeal but, as each of my learned brother is of a contrary opinion, the application must be disposed of in the manner, just stated by Sarjoo Prosad, J.
Application dismissed.
S.H
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