Bawa Lal Dass and others vs Mahant Sohan Dass

H.R. Sodhi, J.—This is an application under Article 133 (1) of the Constitution praying that the Regular Second Appeal No. 898 of 1964, decided by this Court on July 8, 1968, be certified to be fit for further appeal to the Supreme Court. No clause of Article 133 under which the case can be sail to fall has: been indicated in the heading of the application.

The trial Court had dismissed the suit of the plaintiff on what may be described as a preliminary issue holding that the suit was barred u/s 92 of the Code of Civil Procedure. The Court of first appeal concurred with that finding, but the second appeal preferred by the plaintiff to this Court was allowed and the case was remanded to the trial Court for determination of the other issues on merits. It is needless to recapitulate those issues here and suffice it to point out that the suit of the plaintiff can still be decreed if be succeeds on the issues on merits.

Leave to appeal has been sought only on the ground that this Court has varied the judgment and decree of the Court of first appeal and the value of the subject-matter in dispute both in the Court of first instance as well as now, is more than Rs. 20.000/-. This value has been worked out on the basis of the price of agricultural land of which lease is said to have been granted for 99 years by the defendant. We have held that this lease amounts to a permanent alienation. No counter-affidavit has been filed by the Learned Counsel for the plaintiff, though he orally contended that it was the value of the lease which alone should be taken into consideration. Be that as it may, we do not find it necessary to go into this question since the leave has to be refused on the short ground that no final adjudication in respect of the rights of the parties to the suit has yet been given by this Court. It has been observed in the case reported as V.M. Abdul Rahman and others v. DK. Cassim and Sons and another AIR 1933 H.C. 58, that where the order does not finally dispose of the rights of the parties to the suit it cannot be said to be a final judgment or order, no matter even when it goes to the root of the suit and involves the jurisdiction of the Court to entertain the same and that the finality has to be determined only in relation to the suit. If the suit is still alive, in which the rights of the parties have to yet to be determined, no appeal lies against such an order u/s 109 (a) of the Code of Civil Procedure. It is true that in section 109 (a) of the Code of Civil Procedure, as it stood at the time of the decision of the Privy Council in V.M. Abdul Rahman''s case the word ''judgment'' did not appear and it was introduced after-wards. The word judgment'' was also introduced in clause (c) of that section by the CPC (Amendment) Act, 1956 (Act 66 of 1956), the object of all these amendments being to bring in line the provisions of section 109 with those of Article 133 The word ''judgment'', though introduced later, has been interpreted by the Courts in the same sense as the word ''decree'' in the CPC meaning thereby the declaration of the final determination of the rights of the parties in the matter in controversy in the suit. The observations of the Privy Council as maid in V.M. Abdul Rahman''s case were approved by their Lordships of the Supreme Court in a case reported as Jethanand and Sons Vs. The State of Uttar Pradesh, where the same test was applied in determining the finality of a judgment.

Mr. Shambhu Lal Puri, Learned Counsel for the respondent, has made a reference to similar views expressed in the cases reported as Bombay Steam Navigation Company Limited v, Damodar Savailal A.I.R 1933 Sau. 166 (F.B.), Mohd Mohmood Hasan Khan v. Government of Uttar Pradesh AIR 1955 All. 457 (F.B.). and Rattan Chand v. Central Board of Direct Taxes and another (1967) 69 P.L.R. 98 = 59 P.L.R. 150. Mr. Atma Ram. Learned Counsel for the applicant, invited our intention to cases reported as Sultan Singh v. Murli Dhar and others AIR 924 Lah. 571 (F.B.), Union of India (UOI) Vs. Kanahaya Lal Sham Lal, and Dhanalakshmi Vilas Cashew Co. and Others Vs. President, Cashew Industries Staff Association and Others, . None of these cases helps Mr. Atma Ram as the facts there are distinguishable. Sultan Singh''s case decided by a Full Bench of the Lahore High Court and relied upon by Mr. Atma Ram rather goes against him. On an appeal by the plaintiffs in that case, a Division Bench of the High Court holding that the plaintiffs had established an interest within the meaning of section 92 of the CPC remanded the case for trial on remaining issues. On an application being filed for leave to appeal to the Privy Council, the High Court held that the order of remand in those circumstances did not amount to a final order and the leave was accordingly refused. The determination of the matter regarding finality of an order was held to depend not only upon the nature of the issue itself, but upon its importance as compared with that of the other points arising in the suit. It has been observed in that case that it is impossible to lay down any hard and fast rule which could solve the problem in every case and that an issue, which does not dispose of the rights of the parties, does not belong to that category which could be treated as finally disposing of a cardinal point in the suit. In the instant case, there are issues on merits which have yet to be decided and on which the suit, as already observed, can either be decreed or dismissed. Kanahya Lal Sham Lal''s case, (F. B.) is also not of any assistance to the Learned Counsel for the petitioner.

In Dhanalakshmi Vilas Cashew Company''s case decided by the Kerala High Court, the word ''judgment'' has been given the same interpretation so as to mean that it must finally dispose of a dispute between the parties as contrasted with an interlocutory judgment or order. It is not understood how this judgment can possibly be of any assistance to the learned "counsel for the petitioner.

For the foregoing reasons, it must be held that our judgment remanding the case for trial on merits cannot be said to be a final judgment within the meaning of Article 133(1) of the Constitution of India. The application for leave to appeal has, therefore, no merit and stands dismissed with costs.

S.B. Capoor, J.

I agree