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PETITIONER: M/S.  JETHANAND AND SONS

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH.

DATE OF JUDGMENT: 06/02/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. KAPUR, J.L.

CITATION:  1961 AIR  794            1961 SCR  (3) 754  CITATOR INFO :  R          1963 SC1484  (6)  R          1967 SC1344  (12)  D          1967 SC1440  (8)  D          1968 SC 733  (6)  R          1971 SC2319  (1)

ACT: Appeal  to  Supreme Court--Certificate of  fitness  by  High Court--Remand  order, if and when  final  order--Substantial question of law--Power of High Court--Constitution of India, Art. 133--Code of Civil Procedure, 1908 (V of 1908), s. 109.

HEADNOTE: Pursuant  to  an  agreement between the  parties  a  dispute relating  to  the supply of stone ballast was  referred  for adjudication  to an arbitrator who was appointed  under  the agreement.   The arbitrator’s awards were contested  by  the appellants  but  the trial court held that the  dispute  was properly  referred and the  awards were validity made.   The High Court set aside the orders 755 of the trial court and remanded the case for decision  after framing all the issues and giving the parties an opportunity to  produce  evidence.   The  High  Court  then  granted   a certificate  of fitness or appeal to this Court  under  Art. 133(1)(c) of the Constitution. 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  Art. 133 of the Constitution.  An order is final if it amounts to a  final decision relating to the rights of the  parties  in dispute in the Civil proceeding. The power under s. 109 of the Code of Civil Procedure having been  expressly  made  subject to Ch.  IV,  Part  V  of  the Constitution an appeal lay under that section to this  Court only against judgments, decrees and final orders. V....M. Abdul Rahman and Others v. V. D. K. Cassim and  Sons and Another (1933) L.R. 60 I.A. 76, referred to. As  the  orders passed by the High Court did not  raise  any question of great public or private importance and even  the question of interpretation of Para. 3 of the first  schedule of  the Indian Arbitration Act was left open to be tried  by

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the Civil Judge, no certificate of fitness to appeal to this Court could be granted under Art.  133 of the Constitution.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 421 to  423 of 1957. Appeals from the judgment and order dated February 18, 1955, of  the Allahabad High Court (Lucknow Bench), at Lucknow  in F.A.F.O. Nos. 11 to 13 of 1953. J.   B. Dadachanji, for the appellant. C.   B. Agarwala and C. P. Lal, for the respondent. 1961.   February 6. The Judgment of the Court was  delivered by SHAH,  J.-These three appeals were filed by  the  appellants M/s.   Jethanand & Sons with certificate of fitness  granted under Art. 133(1) (c) of the Constitution by the High  Court of Judicature at Allahabad. The  appellants entered into three separate  contracts  with the Government of the United Provinces (now called the State of Uttar Pradesh) on March 20, 1947, May 27, 1947, and  June 28,  1947, for the supply of stone ballast at Shankar  Garh, District  Allahabad.  The contracts which were in  identical terms contained the following arbitration clause 97 756               "  All  disputes between  the  parties  hereto               arising  out of this contract  whether  during               its continuance or after its rescission or  in               respect of the construction or meaning of  any               clause    thereof    or   of    the    tender,               specifications  and conditions or any of  them               or  any part thereof respectively or  anything               arising  out  of or incident thereto  for  the               decision  of  which no express  provision  has               hereinbefore  been made, shall be referred  to               the  Superintending  Engineer  of  the  Circle               concerned and his decision shall in all  cases               and  at all times be final, binding  and  con-               clusive between the parties." Pursuant  to  the contracts, the appellants  supplied  stone ballast.   Thereafter, purporting to act under cl.  (16)  of the agreements, the Executive Engineer, Provincial Division, referred  certain  disputes between the appellants  and  the State  of  Uttar  Pradesh,  alleged  to  arise  out  of  the performance   of  the  contracts,  to  arbitration  of   the Superintending  Engineer  of  the  Circle  concerned.    The Superintending  Engineer required the appellants  to  appear before him at the time fixed in the notices.  The appellants by  their letter dated May 31, 1951, declined to  submit  to the   jurisdiction  of  the  Superintending  Engineer,   and informed  him that if he hears and determines the  cases  ex parte,  the " decisions will not be binding " on  them.   On February  7,  1953,  the Superintending  Engineer  made  and published  three awards in respect of the  disputes  arising under the three contracts and filed the same in the court of the  Civil  Judge,  Lucknow.   The  appellants  applied  for setting  aside the awards alleging that the  contracts  were fully performed and that the dispute alleged by the State of Uttar Pradesh to have arisen out of the contracts could  not arise after the contracts were fully performed and that  the State could not refer those alleged disputes to arbitration. They  also contended that the awards were not valid  in  law because  on the arbitration agreements action was not  taken

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under  s.  20  of the Arbitration  Act.   The  Civil  Judge, Lucknow,  held  that the disputes between the  parties  were properly  referred  to the Superintending  Engineer  by  the State of Uttar 757 Pradesh and that the awards were validly made.  Against  the orders  passed  by the Civil Judge, Lucknow,  three  appeals were  preferred  by  the appellants to  the  High  Court  of Judicature at Allahabad. The  High  Court set aside the orders passed  by  the  Civil Judge  and  remanded  the cases to the Trial  Judge  with  a direction  that he do allow the appellants and if  need  be, the  respondent  to  amend their pleadings,  and  frame  all issues that arise out of the pleadings and allow the parties an  opportunity  to place such evidence as they  desire  and decide  the case on such evidence.  In the view of the  High Court  no  proper  notice of the filing of  the  awards  was served  upon the appellants and that they were  "  seriously handicapped  in  their reply by the course  which  had  been adopted both by the court and the arbitrator in the  conduct of  the proceedings in court." On the applications filed  by the  appellants, the High Court granted leave to  appeal  to this  court  under  Art.  133(1)(c)  of  the   Constitution, certifying that the cases were fit for appeal to this court. Counsel for the respondent has urged that the High Court was incompetent  to grant certificate under Art. 133(1)  (c)  of the Constitution. The order passed by the High Court was manifestly passed  in exercise of the inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process  of the court.  Under Art. 133 of the  Constitution, an  appeal  lies  to this court from  any  judgment,  decree original order in a civil proceeding of a High Court if  the High Court certifies that : (a)............ (b)............    or (c)"the case is a fit one for appeal to the Supreme Court." In  our view, the order remanding the cases under s. 151  of the Civil Procedure Code is not a judgment, decree or  final order  within the meaning of Art. 133 of  the  Constitution. By  its  order, the High Court did not decide  any  question relating  to the rights of the parties to the dispute.   The High Court merely 758 remanded  the  cases for retrial holding that there  was  no proper  trial of the petitions filed by the  appellants  for setting aside the awards.  Such an order remanding the cases for retrial is not a final order within the meaning of  Art. 133(1)(c).   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 Art.  133.   The High  Court assumed that a certificate of fitness to  appeal to  this court may be issued under s. 109(1)(c) of the  Code of  Civil Procedure, even if the order is not final, and  in support  of that view, they relied upon the judgment of  the Judicial  Committee  of  the Privy Council in  V.  M.  Abdul Rahman  v. D. K. Cassim & Sons (1).  But s. 109 of the  Code is  now  made expressly subject to Ch.  IV, Part  V  of  the Constitution  and  Art.  133 (1) (c) which  occurs  in  that chapter  authorises the grant of a certificate by  the  High Court only if the order is a final order.  The inconsistency between  s.  109 Civil Procedure Code and Art.  133  of  the

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Constitution  has  now  been removed by the  Code  of  Civil Procedure  (Amendment) Act 66 of 1955.  But even before  the amending Act, the power under s. 109(1) (c) being  expressly made  subject  to the Constitution, an appeal  lay  to  this Court only against judgments, decrees and final orders. Again, the orders passed by the High Court did not raise any question of great public or private importance.  In the view of  the  High Court, the applications forgetting  aside  the awards  filed by the appellants were not properly tried  and therefore the cases deserved to be remanded to the court  of first  instance for trial de novo.  The High  Court  granted leave  to  the parties to amend their pleadings;  they  also directed  the  Civil Judge to frame " all  the  issues  that arise and allow the parties an opportunity of adducing  such evidence as they desired." It was an order for trial de novo on fresh pleadings and on all issues that may (1)(1933) L.R. 60 I.A. 76. 759 arise  on the pleadings.  Evidently, any decision  given  by the High Court in the course of the order would not in  that trial de novo be binding and the cases will have to be tried afresh  by the Civil Judge.  The High Court was of the  view that the interpretation of para. 3 of the first schedule  of the Indian Arbitration Act raised a substantial question  of law.  But by the direction of the High Court, this  question was  also left open to be tried before the Civil Judge.   We fail to appreciate how an observation on a question which is directed  to be retried can still be regarded as  raising  a question  of  law  of great  public  or  private  importance justifying grant of a certificate under Art. 133 (1) (c)  of the Constitution. We  accordingly vacate the certificate granted by  the  High Court  and  dismiss these appeals with costs.   One  hearing fee.                                          Appeals dismissed.