Firm Shah Panalal Chandulal vs Chitarmal Phool Chand

Nigam, J.C.

In Civil Suit No. 534 of 1951 filed in the Court of the Subordinate Judge, Ajmer, by Chitarmal doing business at Ajmer, against the firm Shah Panalal Chandulal, Khamgaon, Berar, the learned Subordinate Judge held that he had jurisdiction to try the suit. Against that finding the firm Shah Paualal Chandulal, came up in revision and on 8-1-1953. I rejected the revision application. Now this application has been filed under Art. 133 of the Constitution for a certificate that the case is a fit one for appeal to the Hon''ble the Supreme Court. I have heard the learned counsel for the parties.

An objection Las been taken by the learned counsel for Chitarmal, plaintiff. It is urged that the order, dated 8-1-1953, not being a ''final order'', determining the suit between the parties, no appeal lies to the Hon''ble the Supreme Court under Art. 133 of the Constitution. The learned counsel for the applicants contends that it is a ''final order'' and he is entitled to the certificate prayed for.

The first contention of the learned counsel is that the word ''final order'' occurs both in Arts. 132 and 133 of the Constitution. The learned counsel further urges that the explanation to Art. 132 makes it clear that the expression ''final order'' includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case. The learned counsel points out that if the question of jurisdiction had been decided in his favour, the suit filed by Chitarmal would have been finally disposed of. The learned counsel argues that the word ''final order'' occurring in Art. 133 should be given the same scope and meaning as the phrase ''final order'' occurring in Art. 132.

I am unable to agree. The explanation to Art. 132 clearly states that the expression ''final order'' is to include an order such as the one in the present case only for the purposes of Art, 132 and, as such, it is clear the expression ''final order'' has been given a wider scope so far as Art. 132 is concerned. The word ''final order'', when it occurs in Art. 133 is not to be interpreted in terms of the explanation of Art. 132. The absence of any such explanation in Art. 133 and the fact that such an explanation was considered necessary to be added to Art. 132 clearly shows that ''final order'' does not ordinarily include an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.

The next contention of the learned counsel is that the order in question must be regarded as a ''final order'' inasmuch as it finally determines the point in dispute. The learned counsel relies on -- AIR 1949 1 (Privy Council) I have been referred to paras 8, 11 and 19 by the learned counsel for the parties. In para. 8, the following quotation was made from -- ''Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Ratanchand'', AIR 1920 PC 86 (B).

It should be noted that the Appellate Court in India was of opinion that the order it had made ''went to the root of the suit, namely the jurisdiction of the Court to entertain it'', and it was for this reason that the order was thought to be final and the certificate granted. But this was not sufficient. The finality must be a finality in relation to the suit. If, after the order, the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it under S. 109(a) of the Code.

In para. 19 of the same judgment it was stated that it was not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way.

The learned counsel has referred me to para. 11 of the same judgment. He refers to the passage:

.............it must be an order which finally determines the points in dispute and brings the case to an end.

I may point out that the present case has not been brought to an end.

The learned counsel has also referred me to -- Fateh Kunwar Vs. Durbijai Singh, . The head-note states: that if the whole of the judgment, decree or final order is the subject-matter of the proposed appeal then obviously it is the whole of the judgment, decree or final order that has to be taken into consideration; but if only a part of the judgment, decree or final order of the High Court is challenged in the proposed appeal then it is that part alone which is covered by the expression "judgment, decree or final order appealed from." In my opinion this ruling will not help the learned counsel. In the particular case before (sic) is the whole of the order of this Court that is appealed from and not merely a part of it and as such there is no question of my deciding whether a part of that order or the whole of it should be considered for determining the question whether it amounts to a ''final order'' or not.

No other point has been pressed before me.

I, therefore, refuse the certificate prayed for. The applicant will pay the costs of the opposite party.