1959 Supreme(Cal) 197

HIGH COURT OF CALCUTTA
S. C. Lahiri, R. S. Bachawat
MUKUNDA DAS NANDY - Appellant
Versus
BIDHAN CHANDRA ROY - Respondent
Supreme Court Appeal 31  Of  1959
Decided On : AUGUST 31, 1959

An order of a Division Bench holding that it had no jurisdiction to entertain an appeal and directing the return of the memorandum of appeal to the learned filing advocate for presentation to the proper Court is not a final order within the meaning of Article 133 of the Constitution.

Headnote:

CIVIL PROCEDURE CODE - S. 109 (C) - APPEAL TO SUPREME COURT - CERTIFICATE OF FITNESS - ORDER OF DIVISION BENCH HOLDING THAT IT HAD NO JURISDICTION TO ENTERTAIN APPEAL AND DIRECTING RETURN OF MEMORANDUM OF APPEAL TO LEARNED FILING ADVOCATE FOR PRESENTATION TO PROPER COURT - NOT A FINAL ORDER - NO RIGHT OF APPEAL TO SUPREME COURT.

Fact of the Case:

The plaintiff-respondent No. 1 instituted a suit for ejectment of Krishnadas Nandy alleging that he reasonably required the premises for his own occupation. On August 10 1956, the suit ended in a decree in favour of the plaintiff-respondent No. 1. On September 11, 1956 the defendant Krishnadas Nandy filed an appeal against that decree to this Court and that appeal was registered as A. F. O. D. Not 338 of 1956. On January 28, 1958, a Division Bench of this Court remanded the suit to the trial Court for deciding the question whether the requirement of the plain-lift could be satisfied by a partial eviction of the defendant. On April 21, 1958, the original tenant Krishnadus Nandy died and his widow, three sons and five daughters were substituted in his place. On November 14, 1958, the suit was again decreed in full by the trial Court and against that decree four of the heirs namely, the three sons and the widow of the original tenant filed an appeal to this Court which was registered as A. F. O. D. No. 11 of 1959. In the meantime the Bengal, Agra and Assam Civil Courts Act was amended by the State Legislature of West Bengal by West Bengal Act XVI of 1957 and this Act came into force on January 1, 1958. By Section 3 of this Act the pecuniary limit of the appellate jurisdiction of the District Judge was raised from Rs. 5,000/- to 10,000/-. Section 4 of the Act provides that nothing in the Act shall apply to or affect any appeal from any decree or order passed before the commencement of the Act. By a judgment dated the 1st of July, 1959, a Division Bench of this Court held that since the valuation of the appeal was Rs. 6,400/- only and since the decree in the present case was passed after the coming into operation of West Bengal Act XVI of 1957, this Court had no jurisdiction to entertain the appeal. The petitioners, who are the three sons and the widow of the deceased tenant, intend to take a further appeal to the Supreme Court.

Finding of the Court:

The order of this Court dated July 1, 1959, is not a judgment within the meaning of Article 133 of the Constitution. The order of this Court is not a final order within the meaning of Article 133 of the Constitution. The petitioners cannot have a wider right of appeal under Section 109 (c) of the Civil Procedure Code than they have under Article 133 of the Constitution.

Issues: Whether the order of the Division Bench is a judgment, decree or final order within the meaning of Article 133 of the Constitution?

Ratio Decidendi: The word judgment as used in Article 133 of the Constitution cannot include an interlocutory order. The expression "judgment, decree or final order" which occurs in Article 133 of the Constitution also occurred in Section 205 of the Government of India Act of 1935. The word judgment as occurring in Section 205 of the Government of India Act was interpreted by the Federal Court in the case of Kuppuswami Rao v. The King, 1947 FCR 180: (AIR 1949 FC 1), where the appeal to the Federal Court was directed against an order of the High Court holding that the consent of the Government under Section 270 (1) of the Government of India Act, 1935 or the sanction of the Local Government under Section 197 of the Criminal Procedure Code was not necessary for a prosecution then pending before a Magistrate. The test of finality has been laid down in various decisions by the Judicial Committee and also by the Federal Court of our country. In the case of Firm Ramchand Manjimal v. Firm Govardhandas Vishandas Ratanchand, 47 Ind App 124: (AIR 1920 PC 86) where the Judicial Committee was considering the question whether an order refusing to stay a suit under Section 19 of the Indian Arbitration Act was a final order within the meaning of Section 109, Civil Procedure Code, Lord Cave held that the order was not final because it did not finally dispose of the rights of the parties.

Final Decision: The application filed by the petitioners must be dismissed with costs.