TARAPORE & CO. vs M/S. V/O TRACTORS EXPORT, MOSCOW & ANR. on 15 November, 1968

........

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 subclause

(c), if the High

Court

further

certifies

that the appeal involves

some

substantial question of law."

The suit filed by the plaintiffs is a civil proceeding, and

the suit involves some claim or question respecting property

of not less than twenty thousand rupees. That is a matter

not in dispute.

The expression "judgment" in Art. 133 ( 1 ) in the

context in which it occurs means a final adjudication by the

Court

of the rights of the parties, ’and

that

an

interlocutory judgment even if it decides

an issue or

issues

without

finally determining

the

rights

and

liabilities of the parties is not a judgment, however

cardinal the issue may be. In the present case not even an

issue has been decided, and it is not contended that the

order of the High Court amounts to a judgment or ’a decree.

The expression "final order" it has been held by a long

course of authorities, occurring in s. 205 of the Government

of India Act, 1935, s. 109 of the Code of Civil Procedure

and Art. 133(1) of the Constitution means a final decision

on the rights of the parties in dispute in a suit or

proceeding; if the rights of the parties in dispute in the

suit or proceeding remain to be tried, after the order, the

order is not final.

In

Ramchand

Manjimal

v.

Goverdhandas

Vishindas

RatanChand(1), it was held by the Judicial Committee that an

order of the Judicial Commissioner of Sind vacating an order

of stay granted under s. 19 o,f the Indian Arbitration Act,

1899, and refusing to stay a proceeding was not a final

order within the meaning of s. 109(a) of the Code of Civil

Procedure. Viscount Cave referred to Salaman v. Warner(2);

Bozson Altrincham Urban District Council(a) and Issacs v.

Salbstein(4) and observed:

"The

effect

of those

and

other

judgments is that an order is final if it

finally

disposes of the rights

of

the

parties.

The orders now under appeal do not

finally dispose of those rights, but leave

them to be determined by the Courts in the

ordinary way."

In Abdul Rahman v.D.K. Cassim & Sons(5) the

Judicial

Committee observed that the expression "final order" within

the meaning of s. 109(a) of the Code of Civil Procedure,

1908, is an

(1) L.R. 47 I.A. 124.

(2) [1891] 1 Q.B. 734.

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(3) [1903] 1 K.B. 547.

(4) [1916] 2 K.B. 139.

(5) L.R. 60 I.A. 76.

Sup. C.I./69--12

order which finally disposes of the rights of the parties in

relation to the whole suit. In Abdul Rahman’s case(1) a

suit was instituted by D.K. Cassim and Sons claiming damages

against the appellant Abdul Rahman. Soon after the suit was

instituted the plaintiff firm was adjudicated insolvent and

the official assignee was impleaded as an

additional

plaintiff.

The official assignee declined to proceed with

the suit, and the suit was dismissed by the trial court. In

appeal it was held by the High Court of Calcutta that the

cause of action was personal to the insolvents and did not

vest in the assignee, and accordingly they set aside the

decree and remanded the suit for trial. Against that order

an appeal was preferred to the Judicial Committee which was

held not maintainable.

In 8. Kuppusami Rao v. The King(2) The Federal Court

held that the expression "final order" in s. 205 (1 ) of the

Government of India Act, 1935, means an order which finally

determines the points in dispute and brings the case to an

end.

The test of finality, according to the court, is

whether the order finally disposes of the rights of the

parties, and not whether the order decides an important

point or even a vital issue in the case.

Mukherjea,

J.,

in interpreting

the

expression

"judgment, decree or final order" in

s. 205 of the

Government of India Act, 1935, in Mohammad Amin Brothers

Ltd. and others v. Dominion India and others ( 3 ) observed:

"The expression "final order" has been

used in contradistinction to what is known as

"interlocutory

order"

........

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."

In Mohammad Amin Brothers’ case(3) an issue was decided by

the trial court in a petition for winding up of a Company as

to the maintainability of a claim for recovery of income-tax

dues. In appeal the High Court overruled the objection

raised

by

the Company about the maintainability of the

claim, and finding that a bona fide dispute was pending

before the Income-tax authorities relating to a substantial

part of the debt on which the application for winding up was

made and that the solvency of the Company could not be

determined before that dispute was decided, set aside the

order of the Trial Judge and remanded the case to him. The

Federal Court held that the order appealed against was not a

"final order".

In Sardar Syedna Taher Saifuddin Saheb v. The State of

Bombay(4) a suit was filed for a declaration that the order

of ex(1) L.R. 60LA. 76

(2) [1947] F.C.R. 180.

(3) [1949-502] F.C.R. 842.

(4) [1958] S.C.R. 1007.

communication passed by the appellant--religious head of a

community--was invalid.

During the pendency of the suit

them Bombay Prevention of Ex-communication Act 42 of 1949

was enacted and one of the issues raised in the suit was

whether the order of ex-communication was invalid.

This

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issue was tried as a preliminary issue and as it raised the

question of the vires of the Bombay prevention ’of Excommunication Act, 1949, the State of Bombay was impleaded

as a party-defendant in the suit. The trial court decided

the issue against the appellant and the order was confirmed

in appeal by the High Court of Bombay. Against the order

deciding the issue, an appeal was preferred to this Court

with certificate granted by the High Court under Art.

and Art. 133 of the Constitution, and it was held that the

appeal was not maintainable since the decision on the issue

did not finally dispose of the dispute between the parties.

In Srinivasa Prasad Singh v. Kesho Prasad Singh(1) an

order deciding that circumstances had not been established

such as would justify an order for stay of execution of a

decree under appeal was not a ’final order" and was on that

account not appealable to the judicial Committee. Similarly

in Druva Coal Company v. Benaras Bank(2) it was held that an

order by the High Court reversing the order of the Court of

First Instance granting a temporary injunction was not a

final order within the meaning of s. 109 of the Code of

Civil Procedure.

There is, therefore, ’abundant authority in support of

the view that an order is final within the meaning of Art.

133 of the Constitution, under s. 109 Code of Civil

Procedure or s. 205 of the Government of India Act, 1935, if

it amounts to final decision on the rights of the parties in

dispute in the suit or proceeding; if after the order is

made, the suit or proceeding still remains to be

tried, and

the rights in disputes have to be determined, the order

is interlocutory.

Counsel for the appellant strongly relied upon a recent

judgment of this Court in Mohanlal Maganlal Thakkar

v.

State of Gujarat(3) and contended that the view expressed in

the earlier cases is superseded.

In Mohanlal Thakkar’s

case(a) after an enquiry under s. 476 Code of Criminal

Procedure, 1898, a Magistrate ordered that a complaint be

filed against a person in respect of offences under ss. 205,

467 and 468 read with s. 114 I.P. Code.

In appeal the

Additional Sessions Judge held that the complaint was

competent only in respect of the offence under s. 205 read

with

s.

114.

The

High

Court

dismissed

a

revision application against the order of the Court of

Session. Certificate was there(1) 13 C.L.J. 681.

(2) 21 Cal. L.J. 281. (3) A.I.R. 1968 S.C. 733.

after issued by the High Court under Art. 134(1)(c) of the

Con stitution for leave to appeal against the order.

The

competence of the High Court to grant the certificate was

challenged at the hearing of the appeal. This Court held

(Bachawat & Mitter JJ., dissenting) that the order passed

was a final order within the meaning of Art. 134(1) (c)

since the controversy between the parties when the the

complaint in respect of offences under ss. 467 and 468 read

with s. 114 I.P. Code was disposed of by the order of

dismissal and the proceeding regarding that question was

finally decided It was observed that the finality of that

order was not to be judged by co-relating it with the

controversy in the complaint, viz., when then the appellant

had committed the offence charged ,against him therein.

There is nothing in that judgment which supports the

contention that this Court has departed from the principle

of the earlier decisions or has suggested a different test

for determining the finality of orders. The Court in that

case was concerned merely with an order passed by the High

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Court which maintained the order of the Additional Sessions

Judge that a complaint under s. 205 read with s. 114 I.P.

Code could be filed against the appellant. The order of the

High Court finally disposed of the proceeding in the

Magistrate’s

court

relating to the

expediency

of

instituting criminal proceedings against the appellant.

It

was thereafter for the court trying the complaint to decide

whether the offence complained of was committed by the

appellant.

The proceeding for filing a complaint under s.

476 of the Code of Criminal Procedure was a self-contained

proceeding

and

was finally disposed of by the order

directing the filing of a complain under s. 205 read with s.

114 I.P. Code. The proceeding instituted on the complaint

was not part of or incidental to the proceeding for an

enquiry whether a complaint should be filed.

The Court in

that case expressly approved of the earlier view at p. 736

where after referring to Kuppusami Rao’s case(1) observed:

Syedna Taher Saifuddin Saheb’s case(") observed:

" ...... these were cases where the

impugned orders were passed in appeals or

revisions and since an appeal or a revision in

continuation

of

the

original

suit

or

proceeding the test applied was whether the

order

disposed of the original suit

or

proceeding. If it did not, and the suit or

proceeding was a live one, yet to be tried,

the order was held not to be final. Different

tests have been applied, however, to orders

made

in

proceeding independent

of

the

original or the main proceeding."

In our judgment an order passed by the High Court in

appeal which does not finally dispose of a suit

or

proceeding and leave the rights and obligations of the

parties for determination in the suit or proceeding from

which appeal has arisen, is not final within

(1) [1947] F.C.R. 180.

(2) E[1958] S.C.R.

1007.

he meaning of Art. 133(1)(a) and (b). The order refusing to

grant an interim injunction did not determine the rights and

obligations of the parties in relation to the matter in

dispute in the suit. We are unable to hold that, because

the plaintiff’s suit as a result of the order of the High

Court may become infructuous as framed and the plaintiffs

may have to seek amendment of the plaint to get effective

relief, an order which is essentially an interlocutory order

may be deemed final for the purposes of Art. 133 (1) of

the

Constitution. In our judgment, Mohanlal

Maganlal

ThakKar’s case(1) makes no departure from the

earlier

judgments of the Judicial Committee, the Federal Court and

this Court.

The plaintiffs will pay the costs of the

petitioners of the application for revocation of

the

certificate.

G.C.

Certificate

revoked.

(1) A.I.R. 1968 S.C. 733.

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