Ramesh & ANR Vs. Seth Gendalal
Motilal Patni & Ors [1966] INSC 5 (6 January 1966)
06/01/1966 HIDAYATULLAH, M.
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
RAMASWAMI, V.
SATYANARAYANARAJU, P.
CITATION: 1966 AIR 1445 1966 SCR (3) 198
CITATOR INFO :
RF 1967 SC1182 (8) R 1968 SC 733 (8,10,11) F
1968 SC1227 (3) F 1970 SC1972 (5,6,7) R 1971 SC 100 (6,7) RF 1971 SC 771 (1) D
1971 SC2319 (1) R 1972 SC1598 (12,13) R 1978 SC 47 (15) C 1980 SC 962 (59) RF
1986 SC1272 (88)
ACT:
Constitution of India, Art. 133-Appeal
whether lies to Supreme Court from High Court's order in extraordinary civil
jurisdiction under Art. 226--Proceeding under Art. 226 when a 'civil
proceeding'-Final order, what is.
HEADNOTE:
In proceedings under s. 19(1) of the Madhya Pradesh
Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950,
on the application of the appellant, it was held by the Claims Officer that the
debt due to P, the first respondent, was a secured debt despite the fact that a
decree had been passed in respect of the debt. The Claims Officer asked P to
file a statement of claim under s. 22 of the Act. Although the Board of Revenue
held that the Claims Officer had no Jurisdiction to determine the nature of
debt, P, by way of caution, filed a statement of claim under r.
22. The Claims Officer held it to be out of
time and discharged the debt. On appeal by P the Commissioner held that
although the Claims Officer had jurisdiction to decide on the nature of the
debt, the debt was wrongly discharged by him as action under s. 22(1) had not
been taken. The appellant thereupon filed a petition under Arts. 226 and 227 on
the ground inter alia that the Commissioner had no jurisdiction to entertain
and decide the appeal. The High Court summarily dismissed the petition. The
appellants next applied for a certificate of fitness which was refused. The
appellants came to this Court by special leave! and contended that the High
Court had wrongly refused the certificate. The questions that came up for
consideration were : (i) Whether the petition under Art. 226 in the High Court
was a 'civil proceeding', (2) whether an appeal under Art. 133 lay only in a
proceeding in the exercise of the appellate or ordinary civil jurisdiction of
the High Court, and not the extraordinary original civil jurisdiction under
Art. 226 and (3) whether the order of the High Court summarily dismissing the
writ petition of the appellants was a final order.
HELD : (i) A proceeding under Art. 226 for a
writ to bring up a proceeding for consideration is a 'civil proceeding' if the
original proceeding concerned civil rights. [203 G] The dichotomy between civil
and criminal proceedings made by the civil law jurists is apparently followed
in Arts. 133 and 134 and any proceeding affecting civil i.e. private rights,
which is not criminal in nature, is civil. [203 E] S. A,. L. Narayan Row &
Anr. v. Ishwarlal Bhagwandas & Anr., A.I.R. 1965 S.C. 1818, [1966] 1 S.C.R.
190, relied on.
In the present case the Claims Officer
purported to exercise a jurisdiction under which he could order the discharge
of a debt which means that the order affected the civil rights of the parties.
The Commissioner's order reversing the order of the Claims Officer also
affected the same civil rights. The proceedings before the revenue authorities
were therefore 199 civil proceedings and those in the High Court must also be
regarded as, of the same nature. [203 C-E] (ii) It is not permissible by
reference to the history of appeals to the Privy Council under ss. 109 and 110
of the Civil Procedure Code to exclude from the scope of Art. 133 matters heard
by the High Court in the exercise of extraordinary original civil jurisdiction.
Article 133 Uses the widest possible language. The intention is not only to
include all judgments, decrees and orders passed in the exercise of appellate
and ordinary civil jurisdiction but other jurisdictions as well in which civil
rights would come up before the High Court for decision. The drafters of the
Constitution were aware that a new jurisdiction was being conferred on the High
Court’s under Art. 226 and that the new jurisdiction would often result. in
decision affecting civil i.e. private rights, and the need to provide, for
appeals to this Court against such decisions must have been obvious.
The right of appeal is thus stated in general
words in Arts.
132 and 133 and no exception not mentioned in
the articles can be implied. [204 D-G] (iii) A petition to the High Court
invoking jurisdiction under Art. 226 is a proceeding quite independent of the
original controversy. A decision in the exercise of this jurisdiction whether
interfering with the proceedings impugned or declining to do so is a final
decision in so far as the High Court is concerned if the effect is to terminate
the controversy before it. [206 C-D] In the present case the High Court by
summarily dismissing the appellants' writ petition upheld the jurisdiction of
the Commissioner to make the order he did and the fact that the High Court's
order was not a speaking order made no difference. The High Court's order had
the affect of once again reviving the debt in question. The order must be
regarded as final for the purpose of appeal to this Court.
[206 H-207 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 950 of 1965.
Appeal by special leave from the judgment and
order dated February 1, 1965 of the Bombay High Court (Nagpur Bench) at Nagpur
in Misc. Application No. 13 of 1965.
C. B. Agarwala, B. R. L. Iyengar, G. L.
Sanghi and A. G. Ratnaparkhi, for the appellant.
M. S. Gupta, for respondent No. 1 D. R. Prem
and B. R. G. K. Achar, for respondents Nos. 2 and 3.
The judgment of the Court was delivered by
Hidayatullah, J. This is an appeal by special leave against an order dated
February 1, 1965 of the High Court of Bombay (Nagpur Bench) in Miscellaneous
Petition No. 13 of 1965 refusing a certificate under Art. 133 (Is) (a) or (c)
of the Constitution. This certificate was asked by the appellants in respect of
the order of the High Court dated September 21, 1964 in Special Civil Application
No. 471 of 1964. Both these orders summarily dismissed the respective
petitions.
Against the main order Special 200 Leave
Petition (Civil) No. 395 of 1965 has been filed but by an order of this Court
dated July 30, 1965, it has been kept Pending sine die with liberty to bring it
up for hearing after the disposal of the present appeal. This is because the
appellants claim in this appeal that appeal lay as of right to this court and
the certificate was wrongly refused by the High Court. Before we discuss the
question mooted before us we shall state the facts sufficient for the purpose.
On the passing of the Madhya Pradesh
Abolition of Proprietary Rights (Estates Mahals, Alienated Lands) Act, 1950,
the appellants applied under s. 19(1) of the Act for the determination of their
debts, specifying the amounts and particulars of all secured debts and claims
together with the names of the creditors. One such creditor, named by them, is
Gendalal Motilal Patni who is the first respondent.
His debt was a mortgage debt originally but
had resulted in a decree for Rs. 2,16,309. Patni objected that this had ceased
to be a secured debt or secured claim for the application of S. 17 (a) of the
Abolition Act. The objection was taken under s. 21.
The Claims Officer overruled the objection of
Patni by an order dated November 19, 1951. 'He held that although the debt had
merged in a decree it remained a secured debt nevertheless and that as the
amount was recoverable on the date of vesting, the provisions of the Act were
applicable to it. By another order of the same date the Claims Officer called
upon Patni to file his statement of claim under S. 22 of the Act. Patni did not
file the statement but instead preferred an appeal against the main order
before the former Madhya Pradesh Board of Revenue. The Board of Revenue held on
June 15, 1954 that the Claims Officer had no jurisdiction to determine the
character of the debt and only the Civil Court could decide this issue. In
reaching this conclusion the Board followed a decision of the Nagpur High Court
reported in Ramkrishna v. Board of Revenue(1).
Patni next moved the Civil Court and the
Civil Court decided that the debt in question was a secured debt for the
application of the Abolition Act. Patni appealed to the High Court but out of
caution filed his statement of claim before the Claims Officer on January 23,
1958. The ex-proprietors (the appellants here) Objected to the statement on the
ground that it was out of time, and asked that the claim be held discharged.
The Claims Officer accepted the objection and discharged the claim by an order
dated (1) A.T.R. 1954 Nag. 248.
201 December 24, 1962. Patni appealed to the
Commissioner, Nagpur Division, Nagpur (Rev. Appeal No. 2/57/62/63) and by an
order of May 5, 1964 the order of the Claims Officer was set aside. The
Commissioner pointed out that the decision of the Nagpur High Court earlier
referred to was overruled in the subsequent case of the High Court reported in
A.I.R.
1956 Nagpur 193 and the Claims Officer had
jurisdiction to pronounce on the character of the debt. The order of the Claims
Officer of November 19, 1951 was thus held to have revived but the claim could
not be discharged as action under s. 22(1) had not been taken. The case was
remanded to the Claims Officer for disposal according to law.
The appellants thereupon filed a petition
under Arts. 226 and 227 of the Constitution in the High Court of Bombay (Nagpur
Bench) on the ground that the Commissioner had no jurisdiction to entertain and
decide the appeal and that the Claims Officer had ordered the continuation of
the proceedings and so the order of the Commissioner was wrong.
The High Court summarily dismissed the
petition by its first order dated September 21, 1964 against which Special
Leave Petition (Civil) No. 395 of 1965 has been filed. The appellants next
applied for a certificate which was refused by order dated February 1, 1965,
impugned in the present appeal, and the question involved is : whether the
appellants were entitled to a certificate as of right under Art. 133 (1) (a) or
(b) ? his question falls to be considered under Art. 133 of the constitution.
That article reads :
133. Appellate jurisdiction of Supreme Court
in appeals from High Courts in regard to civil matters.
(1)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 19 Sup CI/66-14 202 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.
(Clauses (2) and (3) of Art. 133 are not
relevant).
Under sub cls. (a) and (b) of cl. (1) of this
article an appeal lies on certificate of the High Court. That certificate may
only be issued in cases in which the amount or value of the subject matter of
the dispute in the court of first instance and still in dispute on appeal to
the Supreme Court was or is not less than Rs. 20,000 or the Judgment, decree or
final order involves directly or indirectly some claim or question respecting
property of the like amount or value. Sub-clause (c) is free from any monetary
valuation, and under it a special certificate can be issued even in cases
involving claims or questions respecting property less than Rs. 20,000 if the
High Court considers the case as fit for appeal. Other considerations then
apply which need not be considered here. The present appeal involves a
consideration of sub-cls. (a) and (b) only, because, it is submitted, the
certificate was claimable as of right.
There is, to begin with, no doubt that the
amount or value of the subject matter of the dispute in the High Court and
still in dispute on appeal to this Court is well above Rs. 20,000. This
attracts sub-cl. (a). In any event, the decision of the High Court involves
directly or indirectly a claim above that amount and that attracts sub-cl. (b).
Mr. M. S. Gupta for the answering respondent does not rightly contest this
fact. He submits that cl. (1) of Art. 133, considered as a whole, gives a right
of appeal only against judgments, decrees or final orders passed by the High
Court in the exercise of either the appellate jurisdiction or ordinary original
civil jurisdiction (where a High Court possesses that jurisdiction under its
Letters Patent) but not against a judgment, decree or final order passed in the
exercise of extra-ordinary original civil jurisdiction under Art. 226 of the
Constitution. He further submits that an order dismissing summarily a petition
under Art. 226 of the Constitution is not a judgment, decree or final order
from which an appeal can properly be brought under 203 Art. 133. Lastly, he
submits that a proceeding commenced on an application for a writ is not a civil
proceeding at all.
Article 133 must cover all civil proceedings
because no exception is indicated. The question is whether the proceeding in
the High Court can be described as civil proceedings. The High Court in the
present case was invited to interfere by issuing writs of certiorari and
prohibition against the reopening of the case in which the Claims Officer had
discharged a debt due to the answering respondent. The revenue authorities in
such matters act analogously to civil courts, have a duty to act judicially,
and pronounce upon the rights of parties. In the present case the Claims
Officer purported to exercise a jurisdiction under which he could order the
discharge of a debt which means that the order affected the civil rights of the
parties. The Commissioner's order reversing the order of the Claims Officer
also affected the same civil rights of the parties. The proceedings before the
revenue authorities thus were concerned with the civil rights of two contending
parties. They were civil proceedings. The proceedings in the High Court must
also be regarded as of the same nature.
The term civil proceeding has been held in
this Court to include, at least, all proceedings affecting civil rights, which
are not criminal. The dichotomy between civil and criminal proceedings made by
the Civil Law jurists is apparently followed in Arts. 133 and 134 and any
proceeding affecting civil i.e. private rights, which is not criminal in
nature, is civil. This view was expressed recently by this Court in S. A. L.
Narayan Row and another, etc. v. Ishwarlal Bhagwandas and another, etc.(1).
Shah J, speaking for the majority, first summarises all the provisions in the
Constitution bearing upon appeals to this Court and after analysis, holds that
the words "civil proceeding" are used in the widest sense, that in
contradistinction to criminal proceedings they cover all proceedings which
affect directly civil rights. 'LA' proceeding under Art. 226 for a writ to
bring up a proceeding for consideration must be a civil proceeding, if the
original proceeding concerned civil rights. Here the civil rights of the
parties were directly involved and the proceeding before the High Court was
thus a civil proceeding. The first requisite for the application of Art. 133(1)
is thus satisfied.
The next question is what are the different
kinds of decisions from which appeals lie under Art. 133. Mr.
Gupta's contention that under that article an
appeal can only lie in respect of a judgment or decree or final order passed in
the exercise of appel(1) A.I.R. 1965 S.C. 1818 :[1966] 1 .S.C.R. 190 204 late
or ordinary original civil jurisdiction but not of extraordinary original civil
jurisdiction, is not right. He is apparently harking back to the provisions for
appeal in ss. 109 and 1 1 0 of the Code of Civil Procedure and inasmuch as
appeals under those sections were available against judgments, decrees and
final orders passed in the exercise of appellate or ordinary original civil
jurisdictions only, he thinks, the same position continues still to obtain and
judgments, decrees or final orders passed in the exercise of the extraordinary
original civil jurisdiction are excluded. He seeks, in other words, to limit
the opening words of Art. 133(1) by reference to the history of appeals to the
Privy Council under ss. 109 and 1 10 of the Code of Civil Procedure. In
Municipal Officer, Aden v. Abdul Karim(1) this distinction in fact was made and
the provisions of the amended cl. (40) of the Letters Patent of the Bombay High
Court were called in aid. Mr. Gupta cannot avail himself of the same argument
in view of the use of the words "any judgment, decree or final order in a
civil proceeding of a High Court" in the opening part of Art.
133(1). Article 133 not only discards the
distinction between appellate and original jurisdictions but deliberately used
words which are as wide as language can make them. The intention is not only to
include all judgments, decrees and orders passed in the exercise of appellate and
ordinary original civil jurisdiction but also to make the language wide enough
to cover other jurisdictions under which civil rights would come before the
High Court for decision. The drafters of the Constitution were aware that a new
jurisdiction was being conferred oil the High Courts by Art. 226 of the
Constitution and proceedings before any court or Tribunal within the
jurisdiction of the High Court, including in appropriate cases before
Government would be brought before the High Court and dealt with by issuing
writs of certiorari, mandamus and prohibition. That the new jurisdiction would
often result in decisions affecting civil i.e. private rights must have been
apparent and the need to provide for appeals to this Court from the
determinations of the Courts must have been equally obvious. The right of
appeal to this Court is thus stated in general words in Arts. 132, 133 and no
exception not mentioned in the articles can be implied.
Cases involving an interpretation of the
Constitution are dealt with in Art. 132. That article covers all cases in which
a High Court certifies that any judgment, decree or final order of the High
Court involves a substantial question as to the interpretation (1) I.L.R. 28
Bom. 292.
20 5 of the Constitution. A certificate under
that article may issue in any civil, criminal or other proceeding to bring to
appeal a judgment, decree or final order of the High Court.
The reference to "other
proceedings" was considered necessary because there are certain
proceedings, which are not strictly civil or criminal in nature and they may
yet involve the interpretation of the constitution. Article 132, therefore,
omits no decision if a substantial question as to the interpretation of the
Constitution is necessary to be decided, provided, of course, that the decision
in respect of which the certificate is asked or granted is "a judgment,
decree or final order".
Article 133, on the other hand, provides for
appeals against any judgment, decree or final order in a "civil
proceeding".
We have explained what is meant by a civil
proceeding and have held that such proceedings must concern civil rights
including those arising from status as well as contract.
Once that test is satisfied the word
"Proceeding" is a word of very wide import. We have held that the
proceeding in the High Court was a civil proceeding and although it was for the
exercise of extraordinary original civil jurisdiction, the word "any"
must take in a decision provided it is a judgment, decree or final order.
Mr. Gupta, however, submits that the order of
the High Court was not "a judgment, decree or final order" and gives
two reasons. He says that as the order said nothing about the merits of the
controversy it cannot amount to the kind of determination which those words contemplate
and that as it does not of its own force affect the rights of the parties or
finally put an end to the controversy it cannot be regarded as final.
There is no doubt that the order must possess
a finality for that is what the article itself says. It is also true that it
has been held that an order is not a final order, unless it finally disposes of
the rights of the parties and does not leave them to be determined in the
ordinary way or as it is said that if the suit is still a live suit in which
the rights of the parties have still to be determined, there is no finality and
no appeal lies. Mr. Gupta has brought to our notice all the cases of the
Judicial Committee and this Court in which this test has been applied.
The submissions of Mr. Gupta would have had
considerable force if we were considering the exercise of appellate or
revisional jurisdictions of the High Court and the whole of the controversy had
not been decided by the High Court. An appeal and a revision is a continuation
of the original suit or proceeding and the 20 6 finality must therefore attach
to the whole of the matter and the matter should not be a live one after the,
decision of the High Court if it is to be regarded as final for the purpose of
appeal under Art. 133.
We are concerned here with the exercise of
extraordinary original civil jurisdiction under Art. 226. Under that
jurisdiction, the High Court does not hear an appeal or revision. The High
Court is moved to intervene and to bring before itself, the record of a case decided
by or pending before a court or tribunal or any authority within the High
Court's jurisdiction. A petition to the High Court invoking this jurisdiction
is a proceeding quite independent of the original controversy. The controversy
in the High Court, in proceedings arising under Art. 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. But
it is not to be taken that any order will be a final order.
There are orders and orders. The question
will always arise what has the High Court decided and what 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.
In the present case the question raised was
whether the Commissioner had jurisdiction to set aside the discharge of the
debt ordered by the Claims Officer. This jurisdiction was challenged by the
proceedings under Art. 226. The High Court summarily dismissed the petition. In
other words, it upheld the jurisdiction and in the circumstances it makes no
difference whether the High Court pronounced a speaking order or not. By its
decision the High Court has finally decided the question of jurisdiction. It is
obvious that if the High Court had decided to hold that there was no
jurisdiction, the debt would have stood discharged. The order once again revived
the debt. Now the order of the Commissioner was challenged on the ground of
jurisdiction in a separate proceeding. The High Court decided to dismiss the
petition and the order that was passed must be regarded as final for the
purpose of appeal to this Court. As the other requirements of the article were
satisfied the High Court was in error in refusing the certificate in this case.
The appeal must, therefore, succeed. The
order dated February 1, 1965 is set aside and the case will now go back to the
High Court for disposal according to law. The first respondent shall bear the
costs of the appellant.
Civil Miscellaneous Petition No. 2180 of 1965
was not pressed and is dismissed. There will be no order as to costs in this
petition.
Appeal allowed.
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