Santosh Kumar Das And Others v. Nripendra Kr. Roy Choudhury And Others

The Judgment of the Court was delivered by

G.N Das, J.:— In all the above matters, the Court of origin was a Court which as from the appointed date 16th August 1947 was situated in East Bengal. The appeals to this Court were disposed of, the applications for leave to appeal to the Privy Council were filed and orders foe final admission of the appeal were made before the said date. The paper books were in course of preparation on the said date, and are now ready.

2. In privy council Appeal No. 19 of 1944 the amount due on account of paper book costa was not deposited in time; and office note dated 26th November 1947 was put up before the Division Court taking Privy Council matters.

3. The Division Court, when the matters was put up before it, felt some doubt as to whether this Court had jurisdiction to make any order. The Court then heard the learned Advocates for the parties on 28th November 1947 and 1st December 1947. Meanwhile, an application for the appointment of a guardian ad litem of a minor respondent in Privy Council Appeal No. 8 of 1945 had been directed to be put up before the Division Court taking Privy Council matters and had stood adjourned. This matter was also put up before the Court on 28th November 1947. The self same question as to the power of this Court to pass orders in this matter was also heard along with the said privy council Appeal No. 19 of 1944.

4. Both the cases were disposed of by a judgment reported as Brojendra Kishore Boy Choudhury v. Mohini Mohan Choudhury, 53 C.W.N 134 : (A.I.R (35) 1948 Cal. 303). In Privy council Appeal No. 19 of 1944, this Court by a separate order, extended the time for making the required deposit.

5. In privy council Appeal No. 8 of 1945 by Order No. 40 dated 22nd Decembar 1947, the case was directed to be put up on 16th January 1948 for orders. By Order No. 41 dated 16th January 1948, this Court discharged the Deputy Registrar from the guardianship of the minor respondents 1-7, 9-24 and 26-63 and appointed Mr. Serajuddin Ahmed an Advocate of this Court, as the guardian ad litem of the said minors.

6. Thereafter in another case, Privy council Appeal No. 48 of 1946, the printed record had been transmitted to the Federal Court in accordance with the provisions of Section 4 of the Federal Court (Enlargement of Jurisdiction) Act, 1947 which had meanwhile come into force on 1st February 1948.

7. After the record was received, the Registrar of the Federal Court drew the attention of this Court to the fact that prima facie a question as to the jurisdiction of this Court to deal with the Privy Council matter, was involved and directed that the matter be judicially determined by this Court.

8. On receipt of the letter the above matter and similar other matters including privy council Appeals Nos. 19 of 1944 and 8 of 1945 where, as already stated, the question of jurisdiction of this Court had been decided by a Division Court, were put up before the learned Chief Justice and Chakravatti, J. for orders.

9. These matters were then heard in the presence of the learned Advocates of all the parties in these cases.

10. The learned Chief Justice and Chakravartti, J. were of opinion that the cases reported in Brojendra Kishore v. Mohini Mohan, 53 C.W.N 134 : (A.I.R (35) 1948 Cal. 303), were wrongly decided and that the following questions' should be decided by a Full Bench:

“(1) Whether this Court had, on or after 15th August 1947, jurisdiction over Privy Council matters-in which leave to appeal had been granted and the appeal admitted before 15th August 1947, where the Court of origin is now situate in Pakistan and the subject matter of the dispute fell within the territories of East Bengal?

(2) Whether the orders, dated 22nd December 1947, made in Privy Council Appeals Nos. 19 of 1944 and 8 of 1945 were correctly made?

11. Their Lordships accordingly directed that the above six Privy Council matters be referred to a Full Bench for decision.

12. They have now been argued before us by the learned Advocates for the parties.

13. A preliminary objection was taken by Dr. Sen Gupta that the references are all incompetent as the rules of this Court do not provide for a reference to Full Bench in Privy Council matters. It was submitted that chap. VII, Rr. (2) to (5) are exhaustive of cases where such a reference can be made and these rules do not refer to Privy Council matters. In our opinion, chap VII, R. (1) is wide enough to cover the present cases. Rules (2) to (5) merely define the course to be pursued by the Full Bench in certain specified cases.

14. In two of the cases viz., privy council Appeal No. 19 of 1944 and Privy council Appeal No. 8 of 1945, a further objection was taken. It was submitted that in these cases the jurisdiction of this Court to pass orders was decided by the Division Court as a preliminary point, and that decision operated as res judicata and precludes the referring Judges from deciding the identical point at a later stage and that as such, the reference in these two cases was incompetent.

15. The argument is plausible but does not bear examination.

16. Admittedly Section 11 of the CPC, does not in terms apply. The question is whether the principles of finality in litigation as enunciated by the Privy Council in Ram Kripal Sukul v. Rup Kauri, 11 I.A 37 : (6 ALL. 269 P.C) apply.

17. Mr. Gupta, however, submitted that what is res judicata is the point directly decided or the order passed and not the reason thereof.

18. In the above two cases the question before the Court was whether time should be extended for making a deposit or whether an order appointing a guardian ad litem for a minor respondent should be made. The point whether the Court had power to pass any order in cases like the present was gone into for a limited purpose. The question which has now arisen viz., whether the printed record should go to the East Bengal High Court or to the Privy Council or to the Federal Court did not then arise. In fact, the Federal Court (Enlargement of Jurisdiction) Act 1917 (Act 1 of 1948) had not come into force. The ambit of the enquiry before us is much wider. The order which was passed did not conclusively determine the matter which is now before us. In the case of Tarini Charan Bhattacharjya v. Kedar Nath Haldar, 56 Cal. 723 : A.I.R (16) 1928 Cal. 777 (F.B), Rankin, C.J said that:

“What is conclusive between the parties is the decision of the Court and that reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, that to ascertain their rights and the facts upon which these lights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from re-opening or recontesting that which has been finally decided.”

19. An abstract question of law dissociated from and unconnected with the rights claimed or denied as between the parties to the litigation, is of no importance or value to them or to the decision of the case itself and cannot be said to be substantially in issue, and is not aedem question and the principles of res judicata cannot apply. Broken Hill Proprietary Co. v. Broken Hill Municipal Council, (1926) A.C 94 : (134 L.T 335).

20. It is not every decision of a question of law between the parties which is binding but only that decision on such a question which affects the subject-matter or creates a legal relation between the parties or defines the status of either of them, which is binding.

21. The specific matters then before the Court are binding between the parties but the general question on which this reference has been made, was not directly and substantially in issue and is not so binding. In our opinion, it was open to the referring Judges to go into the matter and to make an order of reference to a Full Bench. The point now raised does not appear to have been raised at the time when the order for reference was made.

22. The references are therefore competent. The preliminary objection is overruled.

23. We now proceed to consider the questions referred to us.

24. Article 3 of the High Court (Calcutta) Order 1947 provides that:

“The High Court in Calcutta shall continue to exist on and after the appointed day, and shall, save as expressly provided by the High Court (Bengal) Order, 1947 have all such original, appellate and other jurisdiction as it had immediately before that day.”

25. This Court, therefore, retains all its original, appellate and other jurisdictions except where such jurisdiction has been taken away by the High Court (Bengal) Order, 1947.

26. Article 3 of the High Court (Bengal) Order, 1947, set up a High Court of Judicature for East Bengal from 15th August 1947 to be called the High Court of East Bengal.

27. Article 5 of the High Court (Bengal) Order vested in the East Bengal High Court in respect of the territories in the Province of East Bengal, all such original, appellate and other jurisdiction which were exercised by the High Court at Calcutta in respect of the said territories before 15th August 1947.

28. Article 13(1) of the High Court (Bengal) Order runs as follows:

“Subject as hereinafter provided, the High Court in Calcutta shall have no jurisdiction in respect of the territories for the time being included in the Province of East Bengal.”

29. The effect of Articles 5 and 13 is thus to give the High Court of East Bengal exclusive jurisdiction in respect of the territories in the Province of East Bengal and to take away all such jurisdiction from the High Court in Calcutta, subject to Article 13 paras. (2)(a)(b)(c) and (3).

30. Paragraph (2)(a) preserves the jurisdiction of this Court in respect of all matters pending before it on the original side on 15th August 1947 even though these may concern the territories in the Province of East Bengal. Appeals from decrees and orders made in such proceedings are to be decided by this Court by virtue of para. (2)(b).

31. Paragraph (2)(c) continues in this Court the power of review of orders made by this Court.

32. Paragraph (3) deals with matters pending on the Appellate Side and reads as follows:

“Subject to the preceding provisions of this Article, all proceedings pending on the Appellate Side of the High Court in Calcutta immediately before the appointed day, shall, where the Court of origin is as from that day, situated in the Province of East Bengal, stand transferred by virtue of this Order to the High Court of East Bengal.”

33. Paragraph (4) then provides:

“Subject to the following provisions of this article with respect to appeals, any order made by the High Court in Calcutta either—

(a) before the appointed day; or

(b) in any proceedings with respect to which the said High Court retains jurisdiction by virtue of Paras. (2) and (3) of this Article

shall for all purposes have effect not only as an order of the High Court in Calcutta but also as an order made by the High Court of East Bengal.”

34. This paragraph is therefore intended to give extra territorial effect to orders passed by this Court after 15th August 1947 in respect of matters dealt with in Article 13, paras. (2)(a), (b), (c) and (3).

35. Paragraph (r) states as follows:

“and for the purposes of this article proceedings shall be deemed to be pending in a particular Court until that Court has disposed of all issues between the parties including any issues with respect to the taxtation of the costs of the proceedings.”

36. In Pyari Mohan Kundu v. Bijoy Singh Chopra, 53 C.W.N 138 : (A.I.R (35) 1918 Cal. 305), a Special Bench of this Court had to construe Article 13(1). High Court (Bengal) Order, 1917. In that case, a suit had been filed in a Court in the District of Faridpur which has on and from 15th August 1947 been assigned to East Bengal, for levy of tolls in a market. The suit was decided by this Court on second appeal before 15th August 1917. An application for leave to appeal to His Majesty in Council was filed in this Court after 16th August 1917. A question arose whether the appeal could be entertained by this Court.

37. It was held that under Article 13(1) of the High Court (Bengal) Order, 1947 the Calcutta High Court had no jurisdiction in respect of any suit instituted in any Court situated within the territory of East Bengal, and the exclusion of jurisdiction was not confined only to suits in respect of lend or interest in land forming part of the territory of East Bengal.

38. Article 13 merely embodies the well established principle of private international law enunciated by the House of Lords in The British South Africa Company v. The Companhia de Mocambique, (1893) A.C 602 : (63 L.J.Q.B 70), where the Supreme Court of Judicature was held to have no jurisdiction to recover damages for trespass to land situate abroad.

39. The question which is now before us was expressly left open by the Special Bench, Pyarimohan v. Bijoy Singh, 53 C.W.N 138 at p. 113 : (A.I.R (35) 1918 Cal. 305).

40. In the present order of reference, the question is stated to be

“whether the records should be despatched to the Federal Court in Delhi or to the High Court at Dacca for transmission to the Privy Council.”

41. In the view we have taken of these cases, the records should be despatched to the High Court at Dacca. It is not necessary for us to express any opinion as to the ultimate destination of the records. That will be a matter for the consideration of the High Court of East Bengal.

42. Article 13(2) and (3) of the High Court (Bengal) Order, 1917, deal with the question of transfer of cases pending in this Court on 15th August 1947. This High Court is known to possess an original side and an appellate side. Different sets of rules hays accordingly been framed by the Court. It is significant that the expressions used are not original jurisdiction or appellate jurisdiction.

43. The Letters Patent vests this Court with original, appellate, revisional and other jurisdiction, e.g, Admiralty, Divorce, Probate, Matrimonial, etc.

44. Under Section 109 of the CPC, (hereinafter called the Code) appeals lie to His Majesty in Council (a) from any decree or final order passed on appeal by the High Court or by any of other Court of final appellate jurisdiction; (b) from any decree or final order passed by a High Court in the exercise of original jurisdiction; and (c) from any decree or order when the case is certified to be a fit one for appeal to His Majesty in Council.

45. In the case of Harish Chandra Acharjee v. Nawab Bahadur of Moorshidabad, 13 C.L.J 688 : (11 I.C 65), it was held that a final order passed in a civil revisional case is an order passed on appeal within S. 109(a).

46. The six Privy Council matters which have been referred to us do not come within cl. (b) or (o) of Section 109 of the CPC. We do not express any opinion on the question as to the destination of the records in such cases.

47. Originally the jurisdiction of a Court to deal with the subject-matter before it ceases with the disposal of the case, except for purposes of review under S. Ill or for correction of certain errors under Ss. 151 and 152 of the Code. We shall now consider the provision of O. 15 of the Code and the Judicial Committee Rules.

48. Under O. 15, this Court receives the application for leave to appeal to His Majesty in Council, exercises powers of consolidation of appeals, grants a certificate, accepts the required deposit or the security.

49. Under R. 8, the Court declares the appeal to be admitted, gives notice to the respondents transmits a correct copy of the record to the Privy Council.

50. Before the admission of the appeal, the Court may revoke the security and make further orders. After the admission of the appeal this Court may order further security or deposit in case of deficiency and in case of failure, the con-sequences mentioned in R. 11 follow. Rules 12, 13 and 14 confer on this Court, even after the final admission, powers of stay of execution, refund of balance of deposit, appointment of receiver, increase of security in case of insufficiency, etc.

51. Rules 8, 9, Judicial Committee Rules, 1920, deal with the powers of this Court after the grant of the certificate. Rules 11, 12 and 13 deal with such powers after final admission of the appeal and before despatch of records, Rule 14 deals with powers of this Court after despatch of records. Rule 51 deals with a certificate of the Registrar as regards the person to be substituted.

52. The broad distinction is that after the dispatch of records, this Court merely makes a report to the Privy Council and final orders are passed by the latter.

53. Rule 19, Judicial Committee Rules, 1925, provides for registry of the appeal in the Privy Council after the records are received.

54. Order 45 of the Code creates a special jurisdiction in the Court whose decree is appealed from to His Majesty in Council, to entertain an application for leave to appeal and to pass various orders as already stated. The extent of the powers of this Court differs at the different stages of the said proceedings in this Court.

55. Dr. Sen Gapta contends that the jurisdiction so created is of a very special character and is exercisable only when occasion arises for such exercise. In support of his submission, he relies on the following observations of Rankin, C.J in Moharaja Bir Bikram Ktshore Manikya v. Ali Ahmed, 32 C.W.N 140 at p. 142 : (A.I.R (15) 1928 Cal. 286):

“Proceedings before this Court have terminated and the whole matter is before the Judicial Committee.”

56. The observations have to be read with reference to the facts then before this Court. A Privy Council appeal had been finally admitted and was proceeding ex parte before the Privy Council. An application was made on behalf of the guardian ad litem to be put in funds for contesting the appeal, A question of jurisdiction of this Court to make an order arose. The learned Chief Justice was of opinion that the powers of this Court were of a limited character depending on O. 45 of the Code and the Judicial Committee Rules and this Court had no power to make the order which was not covered by O. 45 of the Code or by the Judicial Committee Rules. The observations do not mean that no proceedings are pending in this Court after the final admission of the appeal.

57. Reference was also made to the following observations of Sulaiman, J. in Lachmeshwar Prasad Sukul v. Keshwar Lal, 45 C.W.N (F.R) 66 at pp. 68-69 : (A.I.R (28) 1941 F.C 5):

“This obviously implies that after the admission of the appeal, it has passed out of the absolute control of the High Court” (p. 69 ibid).

58. The observations speak of cessation of absolute control of the High Court and support the submission of the learned advocate.

59. Dr. Sen Gupta referred us to Rules 2-6, Judicial Committee Rules, 1920, and Rules 11 to 18 of the Judicial Committee Rules, 1925, and submitted that under the said rules the Registrar of this Court has to perform certain duties and the exercise of such functions would not be possible if the records are transmitted to the High Court of East Bengal. Similar comments were made in regard to Rules 11 to 14, Judicial Committee Rules, 1920.

60. It was also submitted that cl. 42 of the Letters Patent would be affected if these cases are transferred to the High Court, East Bengal.

61. The above argument ignores the effect of the setting up of two dominions and the establishment of a High Court in East Bengal.

62. The Judicial Committee Rules, 1920 and 1925 and cl. 42 of the Letters Patent have to be read so as to make the same applicable to the two High Courts.

63. Section 18 of the Indian Independence Act, 1947, also supports this view and provides lot; contingencies like the present.

64. As already stated, by virtue of O. 45 of the Code and the Rules of the Judicial Committee 1920, 1925 and the rules of this Court, this Court exercises certain powers which, however, differ according to the stage of the proceeding, commencing with the filing of the application for leave to appeal to the Privy Council and ending with the taxation of costs of this Court after the disposal of the appeal.

65. These powers are exercised by this Court as ??? to the due prosecution of the appeal before the Judicial Committee and to the carrying out of the orders of the Judicial Committee. The thread of continuity which runs through the different stages is that all such powers are exercised by this Court in relation to one and the same matter, viz., the appeal before the Privy Council.

66. By reason of Article 13 para. (7) the proceedings which are initiated in this Court by the filing of a petition to this Court under O. 45, R. 2, remain pending till all issues between the parties including any issues with respect to the taxation of the costs of the proceedings, are disposed of.

67. Under R. 45, part II, chap. VI of the Rules of this Court (appellate jurisdiction) the Deputy Registrar of this Court grants to the successful party in appeal to His Majesty in Council a certificate of the costs incurred in the appeal in this Court and places it on the record of the Privy Council appeal Dr. Sen Gupta suggests that the certificate granted by the Deputy Registrar is not taxation of costs. We do not agree. The amount of costs to be entered in the certificate may be a matter of doubt or dispute and the Deputy Registrar has to exercise his judgment in disposing of the matter. Till then, at any rate, the proceedings are pending. The mere fact that no active step may be required to be taken by a party after the final admission of the appeal and before the dispatch of records to the Privy Council does not make the proceedings any the less a pending one. As Jessel M.R observed in In re Clagget's Estate; Fordham v. Clagget, (1882) 20 Ch. D. 637 (653):

“A cause is said to be pending in a Court of justice when any proceeding can be taken in it. That is the test. It you can take any proceeding, it is pending.”

68. There is a distinction between the words ‘appeal’ and ‘proceeding’—S. 646, R. 11. We are concerned with the pendency of ‘proceedings’ in this Court on 16th August 1947.

69. Under chap. VI, R. 2 of the Rules of this Court (Appellate Jurisdiction) matters connected with appeals to His Majesty in Council, except those which the Registrar, Appellate Side, is authorised to deal, shall ordinarily be heard by a Division Court appointed by the Chief Justice to deal with such matters.

70. The six matters before us are thus proceedings pending on the Appellate Side on 15th August 1947.

71. The above discussion leads us to hold that these matters are proceedings pending on the appellate side of the High Court at Calcutta immediately before the appointed date and as the Court of origin in all these matters is as from the appointed day, situated in the Province of East Bengal, they stood transferred by virtue of the High Court (Bengal) Order, 1947, to the High Court of East Bengal.

72. As these matters stood transferred to the High Court of East Bengal on and from 16th August 1947, they were not, in the eye of law, pending in this Court on 1st February 1948 and the Federal Court (Englargement of Jurisdiction) Act 1947 (Act 1 of 1948) is not attracted to these cases.

73. A contrary view was taken by a Division Bench of this Court in Brojendra Kishore Roy Choudhury v. Mohini Mohan Choudhury, 53 C.W.N 134 : (A.I.R (36) 1948 Cal. 303). In the order of reference, the learned Chief Justice referring to this decision said:

“I might say that one of the learned Judges who decided those two cases has himself expressed considerable doubt as to the correctness of the decision.”

74. We shall now proceed to examine the grounds on which the decision is based.

75. The learned Judges rightly point out that under Article 6 of the High Court (Calcutta) Order, 1947, this Court retains all its jurisdiction, original, appellate or otherwise, save as expressly provided by the High Court (Bengal) Order. Article 13 of this Order which was relied on behalf of some of the parties in favour of the transfer of those cases to East Bengal High Court, was held to be inapplicable on the following grounds, (1) The opening words “subject to the preceding provisions of this Article” mean that the proceedings pending on the appellate side should be such on which an adjudication on the merits could be given as in Article 13(2)(a) to (c) i.e, appeals and revisions pending on the appellate side. (2) Article 13(7) defines the word pending, the definition implies an adjudication on some material question of fact or proposition of law; and does not include matters which may arise for disposal after the certificate is granted and before the records are dispatched. (3) The phrase “proceedings pending on the appellate side” is ambiguous and a wide construction which include Privy Council matters, should not be adopted because (a) such an interpretation would affect cl. 42 of the Letters Patent and (b) Rr. 11, 13, 51 of the Judicial Committee Rules, 1925, and would render the provision ultra vires.

76. We shall deal with these reasons seriatim.

77. As regards ground No. (1) we think that the opening words make para. (3) subject to paras. (1) and (2) and do not bear the meaning sought to be put upon them, by the learned Judges. The opening words were inserted with a view to impose a further limitation on Article 13(3) in cases which may come within Article 13(1), (2).

78. As regards no. (2) this Court retains various powers after the grant of a certificate and even after the final admission of the appeal, e.g, application for stay of execution, appointment of a receiver, substitution on death of party, taxation of costs of the High Court, etc., and adjudication may be necessary to decide any dispute which may arise at that stage. We have already held that the pendency of proceedings would not end with the grant of the certificate.

79. As regards ground No. (3), neither cl. 42 of the Letters Patent nor the Judicial Committee Rules are affected by the interpretation we have put on Article 13, para. (3) of the High Court (Bengal) Order, 1947. It is true that under Article 3 of the High Court (Calcutta) Order this Court continues to exist as before; and retains all such original, appellate and other jurisdictions save as otherwise expressly provided. Article 5, High Court (Bengal) Order, 1947, however, vested the above jurisdictions of this Court in the High Court of East Bengal in respect of the territories now in East Bengal. The Letters Patent and the Judicial Committee Rules have to be read, in the changed circumstances, as referring to the High Court, East Bengal, in respect of the territories in East Bengal in cases like the present.

80. But even if the effect of our interpretation be to affect cl. 42 of the Letters Patent and the Rules of the Judicial Committee, such power was vested in the Governor-General by the Indian Independence Act, 1947. The Act was passed by the Houses of Parliament and approved by the Kings' Moat Exalted Majesty and same into force on 18th July 1947.

81. Section 9 provides:

(1) The Governor-General shall by order make such provision as appears to him to be necessary or expedient

(a) or bringing the provisions of this Act into effective operation;

(d) for removing difficulties arising in connection with the transition to the provisions of this Act;

(i) so far it as appears necessary or expedient in connection with any of the matters aforesaid, for varying the constitution, powers or jurisdiction of any legislature, court or other authority in the new Dominions and creating new legislatures, courts or other authorities therein.

82. The above quoted provisions, in our opinion, conferred on the Governor-General plenary powers to provide for all matters consequential on or connected with the setting up of two independent Dominions in India.

83. The High Court (Bengal) Order, 1947, and the High Court (Calcutta) Order, 1947, were promulgated by the Governor-General in exercise of the powers conferred by Section 9 of the Indian Independence Act, 1947, and of all other powers enabling him in that behalf.

84. In our opinion Article 13, High Court Bengal) Order, 1947, as construed by us, is not ultra vires and is not in excess of the powers of the Governor-General by virtue of which the order was made.

85. The grounds on which the decision of this Court in Brojendra Kishore Roy Chowdhury v. Mohini Mohan Choudhury, 63 C.W.N 134 : (A.I.R (35) 1948 Cal. 303), is based, are not tenable. We, therefore, hold that the above case as wrongly decided.

86. Our answers to the two questions refer-red to us are as follows: (1) This Court has on (or after 15th August 1947, no jurisdiction over Privy Council matters in which leave to appeal had been granted and the appeal admitted before 15th August 1947, where the Court of origin is now situate in East Bengal and the subject-matter of the dispute fell within the territories of East Bengal. (2) The orders dated 22nd December 1947, in Privy Council Appeals Nos. 19 of 1944 and 8 of 1945 were not correctly made.

87. Certificate under Section 205(1) of the Government of India Act, 1935, is granted.

R.P Mookerjee, J.:— I agree.

Lahiri, J.:— I agree.

D.H

88. Answers accordingly.