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Bhagwan Singh And Another v. Chief Settlement Commissioner Punjab
Structured Summary of the Opinion (P.C. Pandit, J.) — Connected S.C.A's Nos. 146 & 169 of 1966
Factual and Procedural Background
The Court disposed of two connected Special Civil Applications (S.C.A.'s) Nos. 146 and 169 of 1966 raising the same legal point. The petitioners in both cases had previously had writ petitions dismissed in limine by the High Court. The subject-matter value in each petition, according to the petitioners, was Rs. 20,000 or above. The present question was whether such petitioners are, as a matter of right, entitled to obtain leave (a certificate) to appeal to the Supreme Court under the constitutional and statutory provisions cited. The Advocate General (represented by Mr. M.R. Sharma) had been served notice and made submissions to the Court. There were no counter-affidavits in either case. The High Court orders dismissing the writ petitions did not state that dismissal was on the ground that an alternative remedy was available to the petitioners. The High Court had previously passed orders granting stay of dispossession (dated 16th August, 1966 and 27th September, 1966), which the Court continued for a limited period in this order.
Legal Issues Presented
- Whether a petitioner whose writ petition has been dismissed in limine, and in which the value of the property involved is Rs. 20,000 or more, is entitled as a matter of right to obtain a certificate for filing an appeal to the Supreme Court.
- Whether an order dismissing a writ petition in limine is a "judgment, decree or final order" within the meaning of Article 133 of the Constitution, thereby attracting a right to appeal where the subject-matter value threshold is met.
- How the Supreme Court decision in Ramesh v. Gendalal Motilal Patni (A.I.R. 1966 S.C. 1445) should be interpreted and applied to orders dismissing writ petitions in limine.
Arguments of the Parties
Arguments advanced for the Advocate General (Mr. M.R. Sharma)
- It was contended that an order dismissing a writ petition in limine is not a judgment, decree or final order because such an order says nothing about the merits of the controversy and does not of its own force finally affect the rights of the parties.
- Reliance was placed on the passage from Daryao v. State of U.P. (A.I.R. 1961 S.C. 1457) that a High Court decision refusing to exercise its discretion on grounds like laches or the availability of an efficacious alternative remedy cannot generally be treated as res judicata; from this it was argued that dismissal in limine is not a final, appealable order under Article 133 unless decided on merits.
- Other decisions were cited (including a Federal Court decision S. Kuppuswami Rao v. The King and a Mysore High Court decision Re. Viswanthan v. Rukn-ul-mulk) to support the contention that a dismissal in limine which does not finally dispose rights is not a final order under Article 133.
Petitioners' position (as reflected in the opinion)
- The petitioners asserted that the subject-matter value in each writ was Rs. 20,000 or more and sought certificates to appeal to the Supreme Court as a matter of right after their writ petitions were dismissed in limine.
- It was noted by the Court that there were no counter-affidavits and that the High Court orders did not indicate dismissal on the ground of availability of an alternative remedy.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ramesh v. Gendalal Motilal Patni, A.I.R. 1966 S.C. 1445 | Holds that an order dismissing a writ petition may be a "final order" under Article 133 if the controversy raised before the High Court is finally decided; finality depends on effect of the order (e.g., if HC upholds or declines jurisdiction finally) and not always on whether every remedy between parties is exhausted. | The Court applied Ramesh as the controlling authority: it adopted the test that finality is determined by whether the specific controversy raised before the High Court was finally decided, and concluded that dismissal in limine (absent a statement that an alternative remedy was to be exhausted) is a final order for purposes of Article 133 where the value threshold is met. |
| Daryao v. State of U.P., A.I.R. 1961 S.C. 1457 | Explains that a High Court decision refusing to exercise discretion on grounds of laches or availability of an efficacious alternative remedy may not be pleaded as res judicata; but a decision on merits can bar subsequent petitions under Article 32. | The Court distinguished Daryao: it found that Daryao addressed the competence of subsequent petitions under Article 32 and the doctrine of res judicata, and was not directly dealing with whether an order dismissing in limine is appealable as of right under Article 133. The Court therefore treated Daryao as not determinative of the point before it. |
| S. Kuppuswami Rao v. The King, A.I.R. 1949 F.C. 1 | Decision of the Federal Court on a matter not concerned with the extraordinary original civil jurisdiction of the High Court under Article 226. | The Court observed that this authority was not helpful for the present question because it did not involve Article 226 extraordinary jurisdiction (the question in the instant case). |
| Re. Viswanthan v. Rukn-ul-mulk Sri S. Abdul Wajid, A.I.R. 1960 Mysore 261 | Held that the test for finality under Article 133 is whether an order has finally disposed of the rights of the parties; if dismissal in limine does not finally decide rights, it is not a final order under Article 133(1). | The Court stated that this Mysore High Court decision has been impliedly overruled by the Supreme Court in Ramesh, and therefore did not follow it. |
Court's Reasoning and Analysis
The Court began by identifying the central question: whether dismissal in limine of a writ petition—when the subject-matter value is Rs. 20,000 or more—entitles the aggrieved petitioner to a certificate to appeal to the Supreme Court as of right. The Court analyzed the Supreme Court's decision in Ramesh and extracted the following key principle: an order in proceedings under Article 226 will be a "final order" for Article 133 purposes when the controversy raised before the High Court is finally decided, even if that decision does not finally end all litigation between the parties.
The Court emphasized that Ramesh does not hold that every order dismissing a writ petition is final. Rather, finality depends on the effect of the High Court's order on the controversy brought before it. The Court accepted Ramesh's example that where the High Court declines to interfere because all remedies have not been exhausted, the order may lack the finality contemplated by Article 133. Thus, the decisive test is whether the precise controversy raised before the High Court was finally decided by that order.
The Court then considered opposing authorities relied upon by Mr. M.R. Sharma. It held that the passage in Daryao related to the doctrine of res judicata and the competence of later petitions under Article 32 and therefore was not directly addressing the Article 133 appealability issue raised in the present case. The Court distinguished the requirement of a decision on merits for res judicata (as articulated in section 11 C.P.C. and Daryao) from the concept of a "final order" under Article 133, noting that Article 133's language does not require a prior hearing and decision on merits in the same way as res judicata does under section 11 C.P.C.
The Court found the Mysore High Court decision in Re. Viswanthan inconsistent with Ramesh and treated it as impliedly overruled by the Supreme Court. Other cited authorities (such as the Federal Court decision) were held not to be helpful because they did not concern the extraordinary original civil jurisdiction under Article 226.
Applying the Ramesh test to the facts before it, the Court observed that: (i) the writ petitions had been dismissed in limine; (ii) the petitioners pleaded the subject-matter value to be Rs. 20,000 or above; (iii) there were no counter-affidavits; and (iv) the High Court orders did not state that the petitions were rejected on the ground that an efficacious alternative remedy was available. On that basis, the Court concluded that the controversy raised before the High Court was finally decided by the orders dismissing the writ petitions, and therefore those orders constituted "final orders" within the meaning of Article 133, making the petitioners entitled to certificates to appeal to the Supreme Court.
Holding and Implications
Holding: The petitions were accepted and the petitioners were held to be, as a matter of right, entitled to the grant of certificates for going up in appeal to the Supreme Court where the subject-matter value is Rs. 20,000 or above and the writ petition has been dismissed in limine (in circumstances where the dismissal does not state that an alternative remedy must first be exhausted). The Court ordered the continuance of existing stays of dispossession for a further two months to enable the petitioners to obtain suitable orders from the Supreme Court. The petitions were accepted with no order as to costs. The opinion concludes with "Appeal allowed."
Implications: The direct effect on the parties is that the petitioners obtain certificates to appeal to the Supreme Court as of right, and the temporary stays of dispossession granted earlier by the High Court are continued for two months to permit steps to be taken before the Supreme Court. The Court applied and followed the Supreme Court decision in Ramesh as the controlling authority; it did not purport to lay down a new principle beyond the interpretation adopted from Ramesh. The opinion noted that a prior High Court dismissal will not be appealable as of right if the dismissal expressly rests on the availability of an efficacious alternative remedy (or similar grounds depriving the order of finality), but where no such qualification appears and the controversy before the High Court is finally decided, the right to a certificate to appeal under Article 133 is recognized.
Additional notes from the opinion: Mehar Singh, C.J., concurred ("I agree").
P.C Pandit, J.:— This order will dispose of two connected S.C.A's Nos. 146 and 169 of 1966 in which the same point is involved.
2. The question for decision is whether a petitioner, whose writ petition has been dismissed in limine and the value of the property involved therein is Rs. 20,000 or more, is entitled, as a matter of right, to get leave for filling an appeal to the Supreme Court. This would depend upon the interpretation to be placed on the Supreme Court decision in Ramesh v. Gendalal Motilal Patni . A.I.R 1966 S.C 1445.. There one of the questions debated was whether an order dismissing a writ petition in limine was a judgment, decree or final order” as mentioned in Article 133 of the Constitution. The argument of the counsel for the appellants in that case was that such an order was not a judgment, decree or final order firstly, because it said nothing about the merits of the controversy and it could, therefore, not amount to the kind of determination which those words contemplate 1 and, secondly, it did not of its own force affect the rights of the parties or finally put an end to the controversy. This is also the argument of Mr. M.R Sharma, who appeared in the present case on behalf of the Advocate General to whom notice had been issued by this court. While repelling this contention, the Supreme Court observed thus:—
“The controversy in the High Court, in proceedings arising under Article 226 ordinarily is Whether a decision of or a proceeding before, a Court or tribunal or authority, should be allowed to stand or should be quashed, for want of jurisdiction or on account of errors of law apparent on the face of the record. A decision in the exercise of this jurisdiction, whether interfering with the proceeding impugned or declining to do so, is a final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it.”
3. That means that such an order was held to be a final order within the meaning of Article 133 It the Supreme Court had stopped there, then in all orders of such a nature in which the value of the property involved was Rs. 20,000 or more, the aggrieved person could, as a matter of rights, go up in appeal. The Court, however, goes on to say:—
“But it is not to be taken that any order will be a final order. There are orders and orders. The question wilt always arise what has the High Court decided and that is the effect of the order. If, for example, the High Court declines to interfere because all the remedies open under the law are not exhausted the order of the High Court may not possess that finality which the article contemplates. But the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does not. In either case the controversy in the High Court is finally decided. To judge whether the order is final in that sense it is not always necessary to correlate the decision in every case with the facts in controversy especially where the question is one of jurisdiction of the Court or tribunal. The answer to the question whether the order, is final or not will not depend on whether the controversy is finally over but whether the controversy raised before the High Court is finally over or not. If it is, the order will be appealable provided the other conditions are satisfied, otherwise not.”
4. According to these observations, all orders of this type would not be ‘final orders’. In order to determine whether a particular order of this kind is final or not, the test laid down be the Court is that this question would not depend on whether the controversy between the parties was finally over, but whether the controversy raised before the High Court was finally over or not. In other words, the particular matter brought before this Court might not finally end the litigation between the parties, but if the precise controversy raised before this Court was finally over, then it would be deemed to be a ‘filial order’ within the meaning of article 133. Prime facie, it appears that if a writ petition is dismissed by this Court, the precise controversy which is brought before it in that petition is finally over. I could think of only one contingency in which the dispute would not be finally decided and that is if the writ petition was dismissed on the ground that ??? alternative remedy was available to the petitioner. In that case the petitioner could first exhaust his other remedies and then corrie to this Court for the redress of that particular controversy for which he had come in the first instance, if the same had not been decided to his satisfaction by recourse to the alternative remedy. In such a case it could be said that the controversy was not finally decided by this Court in the earlier proceedings. The Supreme Court has also given this very example for showing that if the High Court declined to interfere, because all the remedies open under the law are not exhausted by the petitioner, the Order of the High Court in that case might not possess that finality which Articled 33 contemplates. It means therefore, that all Orders pissed by the High Court dismissing the writ petition would considered to be final unless it was stated in the said order that the petition was being rejected on the ground that an alternative remedy was available to the petitioner which he should avail of before coming to this Court. Reliance was placed by Mr. Sharma on the following passage in the Supreme Court decision in Daryao v. State of U.P . A.I.R 1961 S.C 1457.—
“……if the High Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. If, however, the matter has been Considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental ??? is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition “filed by the same party on the same facts and for the same reliefs under Article 32.”
5. On the strength of this passage, learned counsel submitted that the decision of the High Court in a writ petition must be on the merits, before it could be pleaded in support of the bar of res judicata. If, however, the High Court had refused to exercise its discretion on the ground of laches or on the plea that the petitioner had an efficacious alternative remedy available to him, then the decision of the high Court could not act as res judicata between the parties. According to the learned counsel, the order of the High Court could be considered final only if the decision of the writ petition was on merits otherwise not. If the petition had been dismissed in limine, there was no decision on merits and hence that order could nit be termed as a final order within the meaning of Article 133.
6. There is no force in this contention. In the case of Daryao, the Supreme Court was considering the question as to whether a person whose writ petition under Article 226 of the Constitution had been dismissed by the High Court, could move the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs. It was in that connection that the observations referred to above were made by the Court. The Supreme Court was not dealing with the point that arises in the instant case i.e whether an order dismissing in limine a petition under Article 228 of the Constitution could be appealed against as a matter of right by the aggrieved party, if the subject matter of the controversy was Rs. 20,009/- or more. Moreover, the wordings of section 11 of the Code of Civil Procedure which deals with the principle of res judicata, are:—
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
7. They show that the matter must have been previously heard and finally decided between the parties, before it could act as res judicata in a subsequent suit. In Article 133 of the Constitution, on the other hand, the language employed is ‘judgment, decree or final order in a civil proceeding of a High Court. Under section 11 of the Code of Civil Procedure, therefore, the matter has to be tried, heard and finally decided between the parties. This obviously means that the decision must be on the merits before it can act as res judicata. This, however, in not a prerequisite of a ‘final order’ as mentioned in Article 133 of the Constitution.
8. It may be mentioned that Mr. M.R Sharma also referred to a decision of the Federal Court in S. Kuppuswami Rao v. The King . A.I.R 1949 F.C 1. since this was not a case which was concerned with the exercise of extraodinary original civil jurisdiction of the High Court under Article 226 of the Constitution, as is the case in hand, it is not helpful for determining the point in issue.
9. Mr. Sharma also referred to a Bench decision of the Mysore High Court in Re. Viswanthan v. Rukn-ul-mulk sri S. Abdul Wajid . A.I.R 1960 Mysore 261., where it was held:
“The test for determining the finality of an order is whether the order has finally disposed of the rights of the parties. Where therefore the High Court while dismissing the writ petition in limine does not decide finally or otherwise any of the rights in dispute between the parties, the order passed by the Court rejecting the writ petition is not a final order within the meaning of Article 133(1) of the Constitution.”
10. This decision, in my opinion, has been impliedly over-ruled by the Supreme Court in the case of Ramesh.
11. Some other decisions of the High Courts were also relied upon by Mr. Sharma. In view, however, of the fact that the matter has been decided by the Supreme Court in the case of Ramesh is pointless to discuss them.
12. Applying the law laid down down in the Supreme Court decision in Remesh, the petitioners in both these cases arenas a matter of right, entitled to the grant of certificates for going up in appeal to the Supreme Court. The value of the subject matter in dispute in both the cases, according to the petitioners, is Rs. 20,000 or above. There are no counter affidavits. In both the cases, the writ petitions were dismissed in limine and it was not said that they had been rejected on the ground that the petitioners had an efficacious alternative remedy available to them.
13. These petitions are, consequently, accepted but with no order as to costs. In both the petitions, the orders granting stay of dispossession passed on 16th August, 1966 and 27th September, 1966 will be continued for another two months only, during which period the petitioners will obtain suitable orders from the Supreme Court in this behalf.
14. Mehar Singh, C.J:— I agree.
15. Appeal allowed.
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