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HIGH COURT OF CALCUTTA
CHAKRABARTI, LAHIRI
WEST JAMURIA COAL CO. - Appellant
Versus
BHOLANATH ROY - Respondent
Appln. For Leave To Appeal To Supreme Court 13 Of 1953
Decided On : SEPTEMBER 04, 1953
CONSTITUTIONAL LAW - ARTICLE 133(1) - APPEAL TO SUPREME COURT - JUDGMENT, DECREE OR FINAL ORDER - SCOPE - INTERPRETATION - DISTINCTION BETWEEN FINAL ORDER AND INTERLOCUTORY ORDER - MEANING OF JUDGMENT - WHETHER INCLUDES INTERLOCUTORY ORDER - WHETHER ARTICLE 133(1) REPRODUCES THE POSITION AS BETWEEN THE HIGH COURT AND THE PRIVY COUNCIL UNDER THE CODE OF 1882 OR THE CODE OF 1908 - WHETHER ARTICLE 133(1) CURTAILS THE RIGHT OF APPEAL OR ENLARGES IT - WHETHER ARTICLE 133(1) TAKES AWAY THE HIGH COURT'S POWER TO CERTIFY ORDERS AS FIT FOR APPEAL - SECTIONS 109 AND 110, CIVIL PROCEDURE CODE, 1908 - ADAPTATION - EFFECT - WHETHER SECTIONS 109 AND 110 CAN CONFER ADDITIONAL RIGHT OF APPEAL - WHETHER SECTIONS 109 AND 110 CAN MODIFY THE RIGHT OF APPEAL GIVEN BY THE CONSTITUTION - ARTICLE 372(2) - ADAPTATION OF LAWS - SCOPE AND PURPOSE.
Fact of the Case:
The petitioner, a company, is the defendant in a suit and prays for leave to appeal to the Supreme Court against an order of this Court, passed in second appeal, by which the case was remanded to the Court of appeal below for disposal in accordance with certain directions given. It claims that the order is a final order and accordingly it is entitled to appeal as of right-under Clause (a) of Article 133 (1) of the Constitution. Alternatively it claims that the case comes under Clause (c) and a certificate that it is a fit case for appeal ought to be granted.
Finding of the Court:
1. The expression 'judgment, decree or final order' which occurs in Article 133 (1), occurred also in Section 205 (1), Government of India Act of 1935. That section applied to both civil and criminal cases and provided for an appeal to the Federal Court on questions of interpretation of the Act and Orders in Council made thereunder. 2. The view which the Federal Court took in the above decisions was that the several orders concerned were not final orders, because they did not satisfy the test laid down in the two later decisions of the Privy Council, given with reference to Section 109 of the Code of 1908. They left the suit or proceeding alive, although they might have decided a cardinal point. A final order, it was further said, was an order on a point which, decided either way, would finally terminate the matter before the court. 3. If the reasoning of the Federal Court applies to the construction of Article 133 (1), it is clearly impossible to accept Mr. Gupta's contention that the order in the present case is a nnal order within the meaning of the Article. 4. The term 'judgment', it has been held, means the final determination of the rights of the parties in the matter brought before the Court which obviously means the whole matter. 5. The phrase 'judgment, decree or final order' occurs in Article 132 (1) as well, which is the successor of Section 205 (1), Government of India Act, 1935. To Article 132, an Explanation has been added to the effect that for the purposes of the Article, "the expression 'final order' includes an order deciding an issue which if decided in favour of the appellant, would be sufficient for the disposal of the case. " No such explanation has been added to Article 133. 6. The concluding paragraph of Article 133 (17 speaks of cases "where the judgment, decree or final order affirms the decision of the Court immediately below" and the paragraph applies to Clauses (a) and (b ). There was a similar paragraph in Section 110 of the Code of 1908, applicable to Clauses (a) and (b) of Section 109, but there the expression was 'decree or final order'. A decree or an order finally terminating the suit or proceeding may affirm the 'decision' of the court below and the language used was appropriate. But if an order does not terminate the suit or proceeding, it is difficult to conceive of its affirming the 'decision' of the lower Court by which, certainly, an interlocutory order of that Court is not meant. 7. For the reasons given above, I must reluctantly and regretfully hold that no certificate can be granted in the present case under either Clause (a) or Clause (c) of Article 133 (1 ).
Issues: 1. Whether the order sought to be appealed from is a 'final order' within the meaning of Article 133 (1) of the Constitution? 2. Whether the expression 'judgment' in Article 133 (1) includes interlocutory orders? 3. Whether Article 133 (1) reproduces the position as between the High Court and the Privy Council under the Code of 1882 or the Code of 1908? 4. Whether Article 133 (1) curtails the right of appeal or enlarges it? 5. Whether Article 133 (1) takes away the High Court's power to certify orders as fit for appeal? 6. Whether Sections 109 and 110, Civil Procedure Code, 1908 can confer additional right of appeal? 7. Whether Sections 109 and 110, Civil Procedure Code, 1908 can modify the right of appeal given by the Constitution?
Ratio Decidendi: 1. The expression 'judgment, decree or final order' in Article 133 (1) means and implies that the decision sought to be appealed from, must be a decree or if an order, must be a final order in the sense of having terminated the litigation. 2. The Constitution has not left the main right of appeal to the Supreme Court to the variable will of the Legislature, but has sought to give it stability and, for all practical purposes, permanency by placing it beyond the legislative sphere of Parliament and incorporating it in one of its own provisions. 3. The right of appeal on a certificate by the High Court, even if the order concerned be not a final order, which had existed at least since 882, has, on that view, now been taken away. 4. The scope of Clauses (a) and (b) of Article 133 (1) is no wider than Clauses (a) and (b) of Section 109 of the Code of 1908 before their adaptation. 5. To be appealable even under Clause (c), an order must now be final in the sense of finally determining the suit. 6. The word 'judgment' in Article 133 (1) does not include interlocutory orders. 7. Article 133 (1) does not reproduce the position as between the High Court and the Privy Council under the Code of 1882 or the Code of 1908. 8. Article 133 (1) curtails the right of appeal by taking away the right to appeal from interlocutory orders which had existed for about three quarters of a century. 9. Article 133 (1) also takes away the High Court's power to certify orders as fit for appeal, even if they are not final orders. 10. Sections 109 and 110, Civil Procedure Code, 1908 cannot confer additional right of appeal. 11. Sections 109 and 110, Civil Procedure Code, 1908 cannot modify the right of appeal given by the Constitution.
Final Decision: The application for leave to appeal to the Supreme Court is dismissed.
( 1 ) THE petitioner, a company, is the defendant in a suit and prays for leave to appeal to the Supreme Court against an order of this Court, passed in second appeal, by which the case was remanded to the Court of appeal below for disposal in accordance with certain directions given. It claims that the order is a final order and accordingly it is entitled to appeal as of right-under Clause (a) of Article 133 (1) of the Constitution. Alternatively it claims that the case comes under Clause (c) and a certificate that it is a fit case for appeal ought to be granted. The argument advanced on the petitioner's behalf has raised certain fundamental questions as to the true scope of Article 133 and its relation to Sections 109 and 110, Civil P. C. , as adapted to the Constitution.
( 2 ) THE suit concerned was brought by the opposite-parties as owners of a certain Touzi which had been created on the resumption of certain lands, previously held under an invalid: lakheraj grant. They claimed damages from the petitioner on the allegation that it had wrongfully extracted a part of the coal underlying five plots of land comprised in the touzi and caused damage to other coal. The petitioner is the lessee of other lands of the mouza where the said five plots are situated under a different proprietor and it has been working a colliery underneath the lands for a great many years. Its defence was that the plaintiffs had no right to the coal underneath the five plots and that even if they had a right, it had been extinguished by adverse possession of the sub-soil and that the suit, as a suit for damages, was barred by limitation. In the course of the trial, the opposite-parties conceded that they had no case with regard to three of the plots. As regards the remaining two plots, the trial Court held that the plaintiffs, though owners of the touzi lands settled with them on resumption had no title to the underground coal and that their title, if any, had been extinguished by adverse possession, it held fur-ther that the suit was time-barred. On appeal, the lower appellate court held in favour of the plaintiffs on the question of title but maintained the dismissal of the suit on the grounds of adverse possession and limitation in regard to which it agreed with the trial court. On second appeal, a Division Bench of this Court (Das Gupta and Guha Ray, JJ.) agreed with the lower appellate court on the question of title, but reversed its finding on the question of adverse possession and, in the view that the question of limitation had not been properly decid-ed, remanded the case to the lower appellate court for disposal after coming to a proper deci-sion on that question. The orders of the courts below were set aside. "if", their Lordships direct-ed, "the suit is not barrsd by limitation, the plain- tiffs' suit should be decreed for such damages as may be found admissible in law. If the suit is barred by limitation, the plaintiffs' suit must be dismissed". The formal order drawn up on the judgment was an order of remand.
( 3 ) THE order of this Court, it is obvious, did not affirm the decision of the court immediately below. If the subject matter of the dispute be of the requisite value, the petitioner is entitled to a certificate under Clause (a) of Article 133 (1) as of right, provided the order sought to be appealed from is a "judgment, decree or final order" within the meaning of that Article.
( 4 ) THE question of valuation presents no difficulty. The plaint was valued at Rs. 2100/-, but as is usual in such cases, the valuation was only tentative, with an offer to pay additional court fees if the amount to which the plaintiffs were entitled, was found to be larger. It appears that in the course of the trial, there was an enquiry by a commissioner as to the quantity of coal extracted from below the disputed plots and the petitioner's own case before the Commissioner was that it had extracted over 17,000 tons. If the extract
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