Sain Dass vs Ch. Nebha Ram and others

Shamsher Bahadur and P.C. Pandit, JJ.—This order will dispose of three applications under Article 133 of the Constitution for the grant of requisite certificates for appeal to the Supreme Court from the common judgment passed by this Bench in three letters Patent Appeals Nos. 122 to 124 of 1963 on 2nd August 1967.

The subject-matter of the controversy consists of three plots, described as agricultural land, sold for industrial purposes by Neba Ram in favour of Sain Dass, Hanuman Woollen Rayon Mills and Damodar Dass and others, on 21st of February and 9th of April, 1955. Three separate suits for possession were filed by Tek Chand and his brother, claiming their pre-emptive light as nephews of the vendor. These suits were consolidated and have been disposed of throughout this litigation on the preliminary issue whether "the land in dispute was ghair mumkin (Waste) land at the time of sale and is it covered by the provisions of Act 10 of 1980?'''' The plea which formed the subject-matter of this preliminary issue was based on an amendment brought in the Pre-emption Act while the pleadings were still being filed by the parties. The amendment provided that the right of pre-emption shall not vest in respect of agricultural land "being waste land reclaimed by the vendee". The trial Judge having decided this issue in favour of the vendees, the three suits were dismissed by him on 10th of March, 1960. Having taken a different view, the lower appellate Court allowed these appeals filed by the pre emptors and setting aside the decrees dismissing the suits remanded them to the trial Judge for framing issue on merits "and then conducting the trial of the suits". From this appellate order of the Senior Sub ordinate Judge, Amritsar passed on 16th of November, 1960, three separate appeals were preferred by the vendees to the High Court, these being S.A.Os Nos. 51 to 53 of 1960. Capoor J., who heard these appeals dismissed them on 21st of January, 1963.

The Letters Patent Bench in the pre-emptors'' appeals, which are L.P. As Nos. 120 to 124 of 1963, restored the order of the lower appellate Court in a judgment delivered on 2nd of August, 1967. and directed the counsel to cause their clients to appear on 3rd September, 1967 before the trial Judge who had been directed to proceed with the trial of the suits on merits.

In these applications for leave to appeal, a preliminary objection has been raised by Mr. Dalip Chand Gupta, the Learned Counsel for the pre-emptors respondent and this, in our opinion, must prevail. Under clause (1) of Article 133 of the Constitution "an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court... if the High Court certifies..." It is submitted by the Learned Counsel that the Letters Patent Bench having affirmed in appeal the order of the lower appellate Court remanding the case to be decided on merits, an appeal is not maintainable no finality being attached to such a judgment. Reliance has been placed by the Learned Counsel on a Privy Council decision in Abdul Rahman v. D.K. Cassim and Sons 60 I.A. 76, which, in construing the words "decree or final order" in section 109(a) of the Code of Civil Procedure, held that "an order of an appellate Court is not a final order'' within section 109(a) of the Code of Civil Procedure, 1968, relating to appeals to His Majesty in Council, unless it finally disposes of the rights of the parties in relation to the whole suit". In the words of Sir George Lowndes, who delivered the opinion of the Board," the finality must be a finality in relation to the suit. If after the order the suit is till alive suit in which the rights of the parties have still to be determined, no appeal lies against it". The order of remand may decide an important and even a vital issue in the case, but if the suit is kept alive and provides for the trial in the ordinary way no appeal, according to the Privy Council, could lie u/s 109(a) of the Code of Civil Procedure. This decision came for consideration before the Federal Court in Mohd. Amin Brothers v. Dominion of India AIR 1950 F.C. 77, and Mr. Justice Mukherje a speaking for the Court, again reiterated that the "test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. The finality must be a finality in relation to the suit".

It is plain that the suit in the present case is still awaiting determination on merits before trial Judge and no finality could possibly attach to the judgment of the Letters Patent Bench which has merely directed the case to be remanded to the trial Judge for adjudication of the dispute.

Another decision of the Supreme Court on this point may also be noticed. In Jethanand and Sons Vs. The State of Uttar Pradesh, it was held that an order remanding a case without deciding any question relating to the rights of the parties is not a judgment, decree or final order within the meaning of Article 133 of the Constitution. It was observed by Mr. Justice Shah, speaking for the Court at page 758 that :

an order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Article 133.

Mr. Jain, the Learned Counsel for the petitioners, submits that section 109(a), when it came to be considered by the Privy Council contained only the words "decree or final order" and the word "judgment" was inserted by the Adaptation Order of 1950. It is submitted that the insertion of the word "judgment" has made all the difference and the ruling of the Privy Council, on which the Federal Court decision is based, was given when the words "judgment, decree or final order" did not occur in just apposition This very argument was noticed in Mohd. Amin Brother''s Case by Mr. Justice Mukherjea, and was thus disposed of :

Lastly, it was urged by Mr. Setalvad, though somewhat faintly, that even if the order appealed against is not a final one, it could still be regarded as a judgment and as such would come within the purview of section 205(1), Government, of India Act... According to the definition given in the Civil Procedure Code, a judgment is the statement of reasons given by a Judge on which a decree or order is based. If the order which is made in this case is an interlocutory order, the judgment must necessarily be held to be an interlocutory judgment and the collocation of the words ''judgment, decree or final order'' in section 205(1), Government of India Act makes it clear that no appeal is provided for against an interlocutory judgment or order.

In this view of the matter, the judgment of the Letters Patent Bench must be regarded as one which is interlocutory in nature. The controversy in dispute has not yet been finally determined, and in our opinion, no appeal is competent.

It is not necessary to discuss the second preliminary objection that the applications did not in any event fulfill the requirements of valuation either under clause (a) or clause (b) of Article 133(1) of the Constitution,

In our view, these applications must fail and are dismissed. In the circumstances, we award no costs.