Ratanlal v. Bhairudan

1. This is an application by Ratanlal for grant of a certificate for leave to appeal to the Supreme Court under Article 133(1)(a), (b) and (c) from the judgment of a Division Bench of this Court in Civil Revision No. 41 of 1951 to which one of us was a party, dated 13-5-1952.

2. A short history of the litigation leading up to the present application may be given. Ratanlal, the present applicant, and his brother Ranchhor Dass (now dead) obtained a monopoly to start a wool press from the former State of Bikaner, in 1928. As they had no capital, they took a loan from Kaluram Chauthmal. There was some dispute with respect to that loan, and an arbitration award was made in June, 1930. By that arbitration award Ratanlal had to pay Rs. 73,000/- to Kaluram Ghauthmal within a certain time. If the payment was made, the press was to become the property of Ratanlal and his brother. But if the payment was not made within the time allowed, Kaluram Chauthmal were to pay Rs. 10,000/- to Ratanlal and his brother and were to become the owners of the press. Ratanlal and his brother took Rs. 73,000/- from Bhairu Dan, and paid off Kaluram Chauthmal. They also took a further sum of Rs. 11,000/- from Bhairu Dan.

Later on, a dispute arose between Ratanlal and his brother on the one side, and Bhairu Dan on the other, as to the nature of the transaction between them. Bhairu Dan claimed that the press had been, sold to him for Rs. 84,000/-, while Ratanlal and his brother said that the transaction was only a mortgage. In any case, the Patta of the Press was granted by the former state of Bikaner to Bhairu Dan, and was notified in the Bikaner Gazette on 18-10-1930. Bhairu Dan also got possession of the entire building except two rooms which were retained by Ratanlal arid his brother. Bhairu Dan's case with respect to this was that Ratanlal and his brother were in his service and were allowed to retain the rooms as such. Eventually, Bhairu Dan got possession of these two rooms also in February, 1934.

Then on 5-2-1936 Ratanlal and his brother filed a petition in the Bikaner High Court for leave to sue in 'forma pauperis' and for recovery of possession of the press. The Bikaner High Court held that Ratanlal and his brother were paupers; but they also held that there was no cause of action, and the petition to sue in 'forma pauperis' was dismissed. Two months' time was allowed, however, to make good the court fee if they wanted to proceed with the suit. Ratanlal and his brother went in revision against this order. This revision was dismissed, and an appeal to the Judicial Committee of the former State of Bikaner was also dismissed in September, 1938. Then it is said that there was some Faryadi petition before His Highness the Maharaja of Bikaner. An order was passed on this petition on 31-3-1949, by which His Highness of Bikaner waived limitation, and allowed Ratanlal and his brother to bring a suit on or before 6-4-1949.

On 5-4-1949, Ratanlal filed a petition in the court of the District Judge of Bikaner praying that he be allowed to sue in 'forma pauperis', and the cause of action was based on the dispossession in February, 1934. This petition was disposed of by the District Judge in December, 1950. The District Judge held that in view of Order 33, Rule 15, C. P. C., no second petition for leave to sue in 'forma pauperis' lay. He, therefore, dismissed the petition; but by the same order he directed Ratanlal to make good the court-fee within two months in order that the suit be registered. The latter part of the order was brought in revision to this Court, and it was contended that the District Judge having held that' no second petition for leave to sue in 'forma pauperis' lay had no jurisdiction to grant time to make good the court-fee.

3. The case came up before a learned Single Judge of this Court, who referred the following question to a Division Bench:

"Whether while rejecting the application for permission to sue as a pauper under Order 33, Rule 15, C. P. C., the court is competent under Section 149, C. P. C. to treat the application as a plaint and allow the applicant to pay the requisite court-fee stamp."

This question was considered by a Bench of this Court to which one of us was a party. It was argued before this Court that the matter before the District Judge was not an application for permission to sue in 'forma pauperis', but an insufficiently stamped plaint, and he had power to order deficiency of court-fee being made good under Section 149.

It was held by this Court that the document, which was presented in the court, was not a plaint, tout an application for leave to sue in 'forma pauperis'. After a review of the authorities, we came to the conclusion that a second application under Order 33, Rule 15 does not lie at all, and as this was a second application, there was no jurisdiction in the District Judge to grant time while rejecting the application on the ground that it was not maintainable under Order 33, Rule 15. The Bench, therefore, set aside that part of the order of the District Judge granting time for making good the court-fee, but made it clear that no opinion was expressed on the question whether the court could treat the suit as having been filed on the date on which court-fee was paid or the costs were deposited.

4. The present application is for leave to appeal against the order of 13-5-1952. It has been opposed on behalf of the opposite parties and their main contention is that the order in question is not a final order, and therefore no leave can be granted under Article 133 at all. Article 133(1) reads as follows:

"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-

(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

(c) that the case is a fit one for appeal to the Supreme Court;

and, where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law."

The wording of Article 133 is in one material respect different from Section 109, Civil P. C. Clauses (a) and (b) of Section 109 provide for appeals from any decree or final order, while Clause (c) provides an appeal from any decree or order. But Article 133 uses the words 'judgment, decree, or final order' with respect to all the three Clauses (a), (b) and (c). Therefore, before leave is granted under any of the Clauses (a), (b) and (c) of Article 133, the Court has to see that the order from which leave to appeal is prayed for is final. The contention of the opposite parties before us is that the order of 13-5-1952, cannot be called a final order, and therefore no leave to appeal can be granted from such an order.

5. What is a final order has been considered in two decisions of the Privy Council. In--'Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Ratanchand', AIR 1920 PC 86 (A), it was held that

"the order is final it it finally disposes of the rights of the parties, and as orders refusing stay of suit do not finally dispose of those rights, but leave them to be determined by the courts in the ordinary way, they are not final orders."

In -- 'V.M. Abdul Rahman v. D. K. Cassim & Sons', AIR 1933 PC 58 (B), it was observed that

"the test of finality is whether the order finally disposes of the rights of the parties. Where the order does not finally dispose of those rights, but leaves them to be determined by the courts in the ordinary way, the order is not final. The finality must be 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 under Section 109(a)."

Their Lordships further pointed out that no hardship could result from this view as in a proper case it was always open to the appellate court to give a special certificate under Section 109(c). These observations, however, may not apply in the context of Article 133(1), for if leave is granted under Clause (a), (b) or (c), it can only be from a judgment, decree or final order.

6. It was urged on behalf of the applicant that an appeal lies to the Supreme Court from any judgment, and that there is a judgment of 13-5-1952, in this case. We are of opinion that this argument has no force because the word 'judgment' used here cannot be taken in its widest possible sense so as to include every order which terminates a proceeding pending in a High Court. The judgment must partake of the nature of finality attributed to a decree and a final order, when it is used in conjunction with the words 'decree', or 'final order'; otherwise the words 'decree' and 'final order' would become superfluous, as every decision on the High Court in any case or proceeding before it would, be a judgment whether or not it finally puts an end to the litigation between the parties.

In this connection reference may be made to the observations of Sulaiman J. in -- 'Dr. Hori Ram Singh v. Emperor', AIR 1939 FC 43 (C) at pp. 47-48. Further, in -- 'S. Kuppuswami Rao v. The King', AIR 1949 FC 1 (D), the Federal Court was of the view that the term 'judgment' in S. 205 of the Government of India Act, 1935, indicated a final decision of the matter in dispute before a court. When we are dealing with a civil revision or appeal to this Court, the judgment, according to the Civil P. C., is merely a statement given by the Judge of the grounds of the decree or order. In such a case we have to see whether there is a decree or a final order, the judgment containing merely reasons for the decree or order which, follows upon it. It is only in cases of extraordinary civil jurisdiction of this Court, for example under Article 226, that an appeal will lie from the judgment of this Court finally deciding the dispute on the merits.

But in case of civil revisions and civil appeals, it is the decree or the final order which is open to appeal to the Supreme Court, and not the judgment which merely sets out the reasons in support of it. We may also in this connection refer to the words of Article 136(1) which gives power to the Supreme Court to grant special leave to appeal. This special leave can be granted from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. The language of this article is obviously very wide and gives power to the Supreme Court to grant special leave from any order; but the same cannot be said about the language of Article 133(1), and the High Court, in our opinion, has to see in case of civil revisions whether the order from which leave to appeal is prayed for is a final order or not.

7. We have, therefore, to see whether the order in this case is a final order or not. The order of 13-5-1952, merely sets aside a part of the order of the District Judge, by which he gave time to the present applicant to make good the court-fee. But it was made quite clear that no opinion was being expressed on the question whether the court-fee having been paid and costs having been deposited, the court could treat the suit as having been filed on the date on which the court-fee was paid or the costs were deposited. The order of 13-5-1952, therefore, did not, in our opinion, finally dispose of, or bring to an end, the litigation which was pending before the District Judge. It was left open to the District Judge to decide whether the suit could be treated as having been filed on the date on which the court-fee was paid or the costs were deposited.

In this view of the matter, we are of opinion that the order of 13-5-1952, is not a final order, and therefore the applicants are not entitled to leave under Article 133(1). Further the order of 13-5-1952, was passed in proceedings relating to an application for permission to sue in forma pauperis. It is well settled that an order refusing leave to appeal in forma pauperis is not a final order, see -- Ram Prasad Sah v. Mt. Fulpati Kuer', AIR 1927 Pat 175 (E); -- 'Mt. Sundar Bahu v. Mt. Mahadei', AIR 1925 Oudh 548 (F); -- 'Aisha Bee Bee v. Noor Mohamed', AIR 1932 Rang 192(1) (G). On the same principle, an order in proceedings for leave to sue in forma pauperis, which merely puts an end to the application for permission, to sue in forma pauperis, cannot be treated as a final order disposing of the suit on the merits.

For this reason also, therefore, we must dismiss the application.

8. The application for leave to appeal is hereby dismissed with costs.