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Rajasthan High Court
Wanchoo C.J. & Dave, J.
Ratanlal - Appellant
Versus
Bhairudan - Respondents
D.B. Civil Misc. Petition for leave to appeal to the Supreme Court No. 11 of 1962
Decided On : February 19, 1954
The wording of Art. 133 is in one material respect different from sec. 109 of the Code of Civil Procedure. Clauses (a) and (b) of sec. 109 provide for appeals from any decree or final order, while clause (c) provides an appeal from any decree or order. But Art. 133 use the words judgment, decree, or final order with respect to all the three clauses (a), (b) and (c). Therefore, before leave is granted under any of the clauses (a), (b) and (c) of Art, 133 the court has to see that the order from which leave to appeal is prayed for is final.
The word judgment used in Art. 133 cannot be taken in its widest possible sense so as to include every order which terminates a proceeding pending in a High Court. The judgment must partake of the nature of finality to a decree and a final order, when it is used in conjunction with the words decree, or final order; otherwise the words decree and final order would become superfluous, as every decision of the High Court in any case or proceeding before it would be a judgment whether or not it finally puts an end to the litigation between the parties. It is only in cases of extraordinary civil jurisdiction of this Court, for example under Art. 226, that an appeal will lie from the judgment of this court finally deciding the dispute on the merits. But in case of civil revisions and civil appeals, it is the decree or the final order which is open to appeal to the Supreme Court, and not judgment which merely sets out the reasons in support of it.
Thus where the order merely sets aside a part of the order of the District Judge, by which he gave time to make good the court fee and it was made quite clear that no opinion was being expressed on the question whether the court fee having been paid and cost having been deposited, the court could treat the suit as having been filed on the date on which the court fee was paid or the costs were deposited, it was held that such an order did not finally dispose of, or bring to an end, the litigation which was pending before the District Judge. It was left open to the District Judge to decide whether the suit could be treated as having been filed on the date on which the court fee was paid or the costs were deposited. In this view of the matter, the order is not a final order, and therefore the applicants are not entitled to leave under Art. 133 (1). (Paras 4, 6 and 7)
2. A short history of the litigation leading up to the present application may be given. Ratanlal, the present applicant, and his brother Ranchhor Dass (now dead) obtained a monopoly to start a wool press from the former State of Bikaner, in 1928. As they had no capital, they took a loan from Kaluram Chauthmal. There was some dispute with respect to that loan, and an arbitration award was made in June, 1930. By that arbitration award Ratanlal had to pay Rs. 73,000/- to Kaluram Chauthmal within a certain time. If the payment was made, the press was to become the property of Ratanlal and his brother. But if the payment was not made within the time allowed, Kaluram Chauthmal were to ray Rs. 10,000/- to Ratan Lal and his brother and were to become the owners of the press. Ratanlal and his brother took Rs 73,000/- from Bhairu Dan, and paid off Kaluram Chauthmal. They also took a further sum of Rs. 11,000/- from Bhairu Dan. Later on, a dispute arose between Ratanlal and his brother on the one side, and Bhairu Dan on the other, as to the nature of the transaction between them. Bhairu Dan claimed that the press had been sold to him for Rs. 84,000/-, while Ratanlal and his brother said that the transaction was only a mortgage. In any case, the patta of the press was granted by the former State of Bikaner to Bhairu Dan, and was notified in the Bikaner Gazette on the 18th October, 1930 Bhairu Dan also got possession of the entire building except two rooms which were retained by Ratanlal and his brother Bhairu Dans case with respect to this was that Ratanlal and his brother were in his is service and were allowed to retain the rooms as such. Eventually, Bhairu Dan got possession of these two rooms also in February. 1934, Then on the 5th of February, 1936, Ratanlal and his brother filed a petition in the Bikaner High Court for leave to sue in forma pauperis and for recovery of possession of the press. The Bikaner High Court held that Ratanlal and his brother were paupers; but they also held that there was no cause of action, and the petition to sue in forma pauperis was dismissed. Two months time was allowed, however, to make good the court fee if they wanted to proceed with the suit. Ratanlal and his brother went in revision against this order. The revision was dismissed, and an appeal to the Judicial Committee of the former State of Bikaner was also dismissed in September, 1938. Then it is said that there was some Faryadi petition before His Highness the Maharaja of Bikaner. An order was passed on this petition on the 31st March, 1949, by which His Highness of Bikaner waived limitation, and allowed Ratanlal and his brother to bring a suit on or before the 6th of April, 1949. On the 5th of April. 1949, Ratanlal filed a petition in the court of the District Judge of Bikaner, playing that he be allowed to sue in forma pauperis, and the cause of action was based on the dispossession in February. 1934 This petition was disposed of by she District Judge in December, 1950. The District Judge held that in view of O. XXXIII, r. 15 C.P.C., no second petition for leave to sue in forma pauperis lay. He, therefore, dismissed the petition; but by the same order he directed Ratanlal to make good the court fee within, two months in order that the suit be registered The latter part of the order was brought in revision to this Court, and it was contended that the District Judge having held that no second petition for leave to sue in forma pauperis lay had no jurisdiction to grant time to make good the court fee.
3. The case came up before a learned single Judge of the Court, who referred the following question to a Division Bench:-—
"Whether while rejecting the application
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