Judgement

Consolidated appeals from a judgment and six orders of the Court of the Judicial Commissioner of Sind (April 16, 1918) reversing six orders of the Additional Judicial Commissioner.

In each of the consolidated appeals the respondent firm had brought a suit against the appellant firm to recover damages for a failure to deliver cotton under a contract of sale and purchase. The contracts were made on the printed form of the Karachi Indian Merchants’ Association and contained a clause referring any dispute arising out of the contract to the arbitration of two members of the above-named Association under the Indian Arbitration Act, 1889, it being provided that if the arbitrators should

Law. Rep. 47 Ind. App. 124 ( 1919- 1920) Ramchand Manjimal V. Goverdhandas Vishindas Ratanchand

disagree the dispute should be referred to an umpire nominated by them, and if they failed to agree on an umpire one should be nominated by the managing committee of the Association.

Upon application by the appellants the Additional Judicial Commissioner stayed the suits under s. 19 of the Indian Arbitration Act.

The Court of the Judicial Commissioner, in its appellate jurisdiction, reversed the order. The learned Commissioners were of opinion upon the evidence that it was practically certain that an umpire would have to be appointed by the managing committee, and that he would be a person interested in awarding that to be a market rate which was not a market rate at all. They accordingly thought that the Court should exercise its discretion under s. 19 by refusing to stay the action.

The present appellants petitioned the appellate Court under Order xlv., rr. 2 & 3, and ss. 109, 110 of the Code of Civil Procedure for leave to appeal, and for a certificate that the subject-matter exceeded Rs. 10,000 in amount, or for a certificate that the case was otherwise a fit one for appeal to His Majesty in Council.

The appellate Court was of opinion that the order made by it was a " final order " within s. 109 (a) of the Code since it went to the root of the suit, namely the jurisdiction of the Court to entertain it. The Court certified that " the case as regards amount fulfils the requirements of s. 110 of the Code of Civil Procedure inasmuch as the subject-matter in dispute is over Rs. 10,000, and the order does not affirm the decision of the lower Court."

The appeal was thereupon entered and came on for hearing.

1920. Feb. 17. Sir John Simon K.C. and E. B. Raikes for the respondents. There is a preliminary objection to the hearing of the appeal. The order refusing a stay was not a " final order " within s. 109

(a) of the Code of Civil Procedure. There was consequently no right of appeal unless the appellate Court under s. 109 (c) specially certified that the case was a fit one for appeal. The Court was prayed so to certify but did not do so. The test adopted by the Court of Appeal in Salaman v. Warner ([ 1891] 1 Q. B. 734.) in deciding whether an order was a final order" for the purposes of the English rule, Order lviii., rr. 2, 3, was whether the decision, whichever way it had been given, finally disposed of the litigation. That test was varied in the later decision, Bozson v. Altrincham Urban Council ([ 1903] 1 K.

B. 547.), by making the question depend upon the effect of the order as made. But whichever test is adopted the order appealed from was not a " final order." The present consolidated appeal is therefore incompetent and should be dismissed.

Upjohn K.C. and Kenworthy Brown for the appellants. The preliminary objection is not open to the respondents, because there was no appeal from the order of the appellate Court under Order xlv. granting leave to appeal. If, however, the point is open, the order was a " final order " since it finally decided that a substantial term of the contract was not to be enforced. In any case the appeals should not be dismissed but remitted in order that the appellate Court may be asked to certify under s. 109 (c). The