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Secretary Of State v. Mask And Co. By M. Vedaohala Mudaliar And Another

Madras High Court

Sep 8, 1938

Judgment

Subsequent
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Summarized Opinion: Varadachariar, J.

Factual and Procedural Background

This is an application made by the Secretary of State for India in Council for leave to appeal to His Majesty in Council against this Court's decision in A.S. No. 179 of 1937. The earlier decision did not finally determine the parties' rights but remanded the suit for trial on the merits. In the trial court, the defendant had raised a preliminary objection that the suit was barred by the provisions of the Sea Customs Act (Issue 3). The trial court upheld that objection and dismissed the suit. On appeal by the plaintiff, this Court held that the Civil Court was not deprived of jurisdiction by the Sea Customs Act and directed that the case be tried on the merits. The present application seeks certification under Clause (c), Section 109 of the Civil Procedure Code (CPC) to permit an appeal to His Majesty's Privy Council from that interlocutory order.

Legal Issues Presented

Whether the order remanding the suit for trial on the merits is a "final order" within the meaning of Clauses (a) and (b), Section 109 of the CPC.
Whether the Civil Court was deprived of jurisdiction by the provisions of the Sea Customs Act (the jurisdictional question decided by this Court).
Whether this case is fit to be certified under Clause (c), Section 109 of the CPC for appeal to His Majesty in Council (i.e., whether certification should be granted for a non-final order because of a substantial question of law of general importance).

Arguments of the Parties

Applicant (Secretary of State / Advocate-General)

Relied on Clause (c) of Section 109 CPC because the order was not a "final order" under Clauses (a) or (b).
Submitted that the amount claimed in the suit exceeds Rs. 20,000.
Argued that the question of jurisdiction decided by this Court is a substantial question of law and of general importance, justifying certification.
Informed the Court that the jurisdictional question awaited decision in eight other suits in the province and that multiple other claims and suits existed in other provinces, making an early authoritative decision from the Judicial Committee desirable.

Respondents

Contended that it would be a hardship for the respondents to take steps to appear before the Judicial Committee at this interlocutory stage and that the matter could as conveniently be carried in appeal after final determination on the merits.
Pointed out that if the lower court ultimately decided against the plaintiffs on the merits, an appeal to His Majesty in Council by the Secretary of State might not be necessary.
Emphasized that the respondents were being kept out of possession of a large sum of money and that further delay in disposal on the merits would cause them great loss.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court proceeded stepwise:

Characterized the order remanding the suit for trial as not a "final order" within the meaning of Clauses (a) and (b) of Section 109 CPC; accordingly the Advocate-General relied upon Clause (c) of Section 109 as the proper basis for certification.
Considered the submissions of both sides, including the Advocate-General's factual representation that the jurisdictional question was pending in eight other suits in the province, that other like claims existed where notice of suit had been given, and that litigation on the same point was pending in other provinces.
Weighed the respondents' concern about hardship and delay against the wider public and administrative interest, noting the question's general importance and the potential multiplicity of suits that would follow from differing lower-court decisions.
Concluded that, given the general importance of the jurisdictional question and the practical consequences for multiple pending cases, the matter was fit to be certified under Clause (c), Section 109 CPC for appeal to His Majesty's Privy Council.
Addressed remedies for any hardship to respondents by stating that any order as to costs to ameliorate such hardship must be left to the Judicial Committee, since this Court lacked power to impose such conditions.

Holding and Implications

Holding: The Court granted a certificate under Clause (c), Section 109 of the Civil Procedure Code that this is a fit case to be taken in appeal to His Majesty in Council. The opinion concludes: "Certificate granted."

Implications:

The Secretary of State for India in Council is authorized by this certificate to petition His Majesty's Privy Council on the interlocutory jurisdictional question decided by this Court.
Any potential hardship to the respondents arising from early appellate proceedings (for example, costs) is left to be considered and, if appropriate, remedied by the Judicial Committee; this Court expressly disclaimed power to impose such conditions.
The opinion does not state or establish any broader precedent beyond granting certification in the circumstances described; its direct effect is to permit an appeal to the Judicial Committee on the jurisdictional question.

Show all summary ...

Varadachariar, J.:— This is an application made on behalf of the Secretary of State, for India in Council, for leave to appeal to His Majesty in Council against the decision of this Court in A.S No. 179 of 1937.1 That judgment did not decide the rights of the parties finally but only remanded the suit for trial on the merits. In the Court below, an objection had been taken to the jurisdiction of the Court to entertain the suit on the ground that the suit was barred by the provisions of the Sea Customs Act: vide Issue 3. The lower Court tried this issue as a preliminary issue and upholding the objection dismissed the suit. On appeal by the plaintiff, this Court held that the Civil Court was not deprived of jurisdiction in the matter by the provisions of the Sea Customs Act and accordingly directed the case to be tried on the merits.

2. It has been held that an order of the above kind is not a “final order” within the meaning of Cls. (a) and (b), Section 109 of the CPC. The learned Advocate-General accordingly relied upon Clause (c) of that Section and asked us to certify that this is a case fit to be taken in appeal to His Majesty's Privy Council. The amount claimed in the suit is more than Rs. 20,000 and the question of jurisdiction decided by this Court is a substantial question of law and one of general importance. It was however pressed on us by the learned counsel for the respondents that it would be a hardship to his clients to take steps to appear before the Judicial Committee at this stage as the matter might as conveniently be carried in appeal to the Privy Council, after a final decision of the case on the merits. If, for any reason, the lower Court should decide against the plaintiffs on the merits, an appeal to His Majesty in Council by the Secretary of State might, it was pointed out, not be necessary at all. It was also contended that the respondents are being kept out of possession of a large sum of money and that any further delay in the disposal of the suit on the merits would cause great loss to them.

3. We have carefully considered this aspect of the matter. Before coming to a final conclusion, we desired to know whether there was any urgency for obtaining an adjudication from the Judicial Committee on the question of jurisdiction: and on information obtained from the department, the learned Advocate-General informed us that this question of jurisdiction is awaiting decision in eight suits pending in this province and that if in the ordinary course, the Courts in the mofussil should follow our decision, it would be necessary for the Secretary of State to bring them all in appeal to this Court. It was also represented that there were other claims of the same kind in which notice of suit had been given and that some litigations were pending in the Courts in other provinces. In view of these considerations land having regard to the general importance of the question, we have come to the conclusion that this is a fit case to be certified under Cl. (c), Section 109 of the CPC. The question whether any possible hardship to the respondents arising from this course can be remedied by an appropriate order as to costs must be left to be dealt with by their Lordships of the Judicial Committee; we have no power to impose any conditions in that behalf. A certificate will be granted under Cl. (c), Section 109 of the CPC.

C.R.K/D.S

4. Certificate granted.