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PETITIONER: RAMESH AND ANOTHER

       Vs.

RESPONDENT: SETH GENDALAL MOTILAL PATNI AND OTHERS

DATE OF JUDGMENT: 06/01/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1445            1966 SCR  (3) 198  CITATOR INFO :  RF         1967 SC1182  (8)  R          1968 SC 733  (8,10,11)  F          1968 SC1227  (3)  F          1970 SC1972  (5,6,7)  R          1971 SC 100  (6,7)  RF         1971 SC 771  (1)  D          1971 SC2319  (1)  R          1972 SC1598  (12,13)  R          1978 SC  47  (15)  C          1980 SC 962  (59)  RF         1986 SC1272  (88)

ACT: Constitution  of  India,  Art. 133-Appeal  whether  lies  to Supreme Court from High Court’s order in extraordinary civil jurisdiction under Art. 226--Proceeding under Art. 226  when a ’civil proceeding’-Final order, what is.

HEADNOTE: In  proceedings  under  s.  19(1)  of  the  Madhya   Pradesh Abolition of Proprietary Rights (Estates, Mahals,  Alienated Lands)  Act, 1950, on the application of the  appellant,  it was  held by the Claims Officer that the debt due to P,  the first respondent, was a secured debt despite the fact  that a decree had been passed in respect of the debt.  The Claims Officer asked P to file a statement of claim under s. 22  of the Act.  Although the Board of Revenue held that the Claims Officer had no Jurisdiction to determine the nature of debt, P,  by way of caution, filed a statement of claim  under  r. 22.   The  Claims  Officer held it to be  out  of  time  and discharged  the debt.  On appeal by P the Commissioner  held that although the Claims Officer had jurisdiction to  decide on  the nature of the debt, the debt was wrongly  discharged by  him  as action under s. 22(1) had not been  taken.   The appellant thereupon filed a petition under Arts. 226 and 227 on  the  ground  inter alia that  the  Commissioner  had  no jurisdiction  to entertain and decide the appeal.  The  High Court summarily dismissed the petition.  The appellants next applied for a certificate of fitness which was refused.  The

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appellants  came  to this Court by special leave!  and  con- tended   that  the  High  Court  had  wrongly  refused   the certificate.   The questions that came up for  consideration were  : (i) Whether the petition under Art. 226 in the  High Court was a ’civil proceeding’, (2) whether an appeal  under Art.  133  lay only in a proceeding in the exercise  of  the appellate or ordinary civil jurisdiction of the High  Court, and not the extraordinary original civil jurisdiction  under Art.  226  and  (3)  whether the order  of  the  High  Court summarily dismissing the writ petition of the appellants was a final order. HELD  : (i) A proceeding under Art. 226 for a writ to  bring up a proceeding for consideration is a ’civil proceeding’ if the original proceeding concerned civil rights. [203 G] The dichotomy between civil and criminal proceedings made by the  civil law jurists is apparently followed in  Arts.  133 and  134  and any proceeding affecting  civil  i.e.  private rights, which is not criminal in nature, is civil. [203 E] S.   A,.  L.  Narayan Row & Anr. v. Ishwarlal  Bhagwandas  & Anr., A.I.R.   1965  S.C. 1818, [1966] 1 S.C.R. 190,  relied on. In   the  present  case  the  Claims  Officer  purported  to exercise  a  jurisdiction  under which he  could  order  the discharge of a debt which means that the order affected  the civil  rights  of  the parties.   The  Commissioner’s  order reversing the order of the Claims Officer also affected  the same  civil  rights.   The proceedings  before  the  revenue authorities were therefore 199 civil  proceedings and those in the High Court must also  be regarded as, of the same nature. [203 C-E] (ii) It  is not permissible by reference to the history  of appeals  to the Privy Council under ss. 109 and 110  of  the Civil  Procedure Code to exclude from the scope of Art.  133 matters  heard  by  the  High  Court  in  the  exercise   of extraordinary original civil jurisdiction.  Article 133 Uses the widest possible language.  The intention is not only  to include  all  judgments, decrees and orders  passed  in  the exercise  of appellate and ordinary civil  jurisdiction  but other jurisdictions as well in which civil rights would come up before the High Court for decision.  The drafters of  the Constitution  were aware that a new jurisdiction  was  being conferred on the High Courts under Art. 226 and that the new jurisdiction would often result. in decision affecting civil i.e. private rights, and the need to provide, for appeals to this  Court against such decisions must have  been  obvious. The right of appeal is thus stated in general words in Arts. 132  and 133 and no exception not mentioned in the  articles can be implied. [204 D-G] (iii)     A petition to the High Court invoking jurisdiction under  Art.  226 is a proceeding quite  independent  of  the original  controversy.  A decision in the exercise  of  this jurisdiction   whether  interfering  with  the   proceedings impugned or declining to do so is a final decision in so far as the High Court is concerned if the effect is to terminate the controversy before it. [206 C-D] In  the present case the High Court by summarily  dismissing the appellants’ writ petition upheld the jurisdiction of the Commissioner to make the order he did and the fact that  the High  Court’s  order  was  not  a  speaking  order  made  no difference.   The High Court’s order had the affect of  once again  reviving  the debt in question.  The  order  must  be regarded  as final for the purpose of appeal to this  Court. [206 H-207 C]

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 950 of 1965. Appeal  by special leave from the judgment and  order  dated February 1, 1965 of the Bombay High Court (Nagpur Bench)  at Nagpur in Misc.  Application No. 13 of 1965. C.   B.  Agarwala, B. R. L. Iyengar, G. L. Sanghi and A.  G. Ratnaparkhi, for the appellant. M.   S. Gupta, for respondent No. 1 D.   R.  Prem and B. R. G. K. Achar, for respondents Nos.  2 and 3. The judgment of the Court was delivered by Hidayatullah, J. This is an appeal by special leave  against an order dated February 1, 1965 of the High Court of  Bombay (Nagpur  Bench)  in Miscellaneous Petition No.  13  of  1965 refusing a certificate under Art. 133 (Is) (a) or (c) of the Constitution.  This certificate was asked by the  appellants in  respect of the order of the High Court  dated  September 21, 1964 in Special Civil Application No. 471 of 1964.  Both these  orders summarily dismissed the respective  petitions. Against the main order Special 200 Leave Petition (Civil) No. 395 of 1965 has been filed but by an order of this Court dated July 30, 1965, it has been kept Pending  sine  die with liberty to bring it up  for  hearing after  the disposal of the present appeal.  This is  because the  appellants claim in this appeal that appeal lay  as  of right to this court and the certificate was wrongly  refused by  the High Court.  Before we discuss the  question  mooted before  us  we  shall state the  facts  sufficient  for  the purpose. On  the  passing  of the Madhya Pradesh  Abolition  of  Pro- prietary  Rights  (Estates  Mahals, Alienated  Lands)  Act, 1950,  the appellants applied under s. 19(1) of the Act  for the determination of their debts, specifying the amounts and particulars  of all secured debts and claims  together  with the  names  of the creditors.  One such creditor,  named  by them, is Gendalal Motilal Patni who is the first respondent. His debt was a mortgage debt originally but had resulted  in a  decree  for Rs. 2,16,309.  Patni objected that  this  had ceased  to  be  a  secured debt or  secured  claim  for  the application  of  S.  17  (a)  of  the  Abolition  Act.   The objection was taken under s. 21. The  Claims Officer overruled the objection of Patni  by  an order  dated November 19, 1951.  ’He held that although  the debt  had  merged  in a decree it remained  a  secured  debt nevertheless  and that as the amount was recoverable on  the date  of vesting, the provisions of the Act were  applicable to it.  By another order of the same date the Claims Officer called upon Patni to file his statement of claim under S. 22 of  the Act.  Patni did not file the statement  but  instead preferred an appeal against the main order before the former Madhya Pradesh Board of Revenue.  The Board of Revenue  held on June 15, 1954 that the Claims Officer had no jurisdiction to  determine the character of the debt and only  the  Civil Court could decide this issue.  In reaching this  conclusion the  Board  followed  a decision of the  Nagpur  High  Court reported in Ramkrishna v. Board of Revenue(1). Patni next moved the Civil Court and the Civil Court decided that  the  debt  in  question was a  secured  debt  for  the application  of  the Abolition Act.  Patni appealed  to  the High  Court but out of caution filed his statement of  claim before  the  Claims Officer on January 23,  1958.   The  ex- proprietors (the appellants here) Objected to the  statement

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on  the ground that it was out of time, and asked  that  the claim  be held discharged.  The Claims Officer accepted  the objection and discharged the claim by an order dated (1)  A.T.R. 1954 Nag. 248.                             201 December 24, 1962.  Patni appealed to the Commissioner, Nag- pur Division, Nagpur (Rev.  Appeal No. 2/57/62/63) and by an order of May 5, 1964 the order of the Claims Officer was set aside.   The Commissioner pointed out that the  decision  of the  Nagpur High Court earlier referred to was overruled  in the  subsequent  case of the High Court reported  in  A.I.R. 1956  Nagpur 193 and the Claims Officer had jurisdiction  to pronounce  on the character of the debt.  The order  of  the Claims  Officer of November 19, 1951 was thus held  to  have revived  but  the claim could not be  discharged  as  action under s. 22(1) had not been taken.  The case was remanded to the Claims Officer for disposal according to law.  The  appellants thereupon filed a petition under Arts.  226 and  227  of the Constitution in the High  Court  of  Bombay (Nagpur  Bench) on the ground that the Commissioner  had  no jurisdiction to entertain and decide the appeal and that the Claims   Officer  had  ordered  the  continuation   of   the proceedings and so the order of the Commissioner was  wrong. The High Court summarily dismissed the petition by its first order  dated September 21, 1964 against which Special  Leave Petition  (Civil)  No.  395 of 1965  has  been  filed.   The appellants next applied for a certificate which was  refused by  order  dated February 1, 1965, impugned in  the  present appeal,   and  the  question  involved  is  :  whether   the appellants were entitled to a certificate as of right  under Art. 133 (1)  (a) or (b) ? his question falls to be considered under Art. 133 of the constitution.    That article reads :               133.  Appellate jurisdiction of Supreme  Court               in appeals from High Courts in regard to civil               matters.               (1)An  appeal shall lie to the  Supreme  Court               from any judgment, decree or final order in  a               civil  proceeding  of  a  High  Court  in  the               territory   of   India  if  the   High   Court               certifies-               (a)   that the amount or value of the subject-               matter  of the dispute in the court  of  first               instance  and still in dispute on  appeal  was               and is not less than twenty thousand rupees or               such  other  sum as may be specified  in  that               behalf by Parliament by law; or               (b)   that the judgment, decree or final order               involves directly or indirectly some claim  or               question 19 Sup CI/66-14 202               respecting  property  of the  like  amount  or               value; or               (c)   that the case is a fit one for appeal to               the  Supreme Court; and, where  the  judgment,               decree  or final order appealed  from  affirms               the decision of the court immediately below in               any case other than a case referred to in sub-               clause   (c).  if  the  High   Court   further               certifies   that  the  appeal  involves   some               substantial question of law.               (Clauses  (2)  and  (3) of Art.  133  are  not               relevant).

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Under  sub-cls.  (a) and (b) of cl. (1) of this  article  an appeal  lies  on  certificate  of  the  High  Court.    That certificate may only be issued in cases in which the  amount or  value of the subject matter of the dispute in the  court of  first  instance and still in dispute on  appeal  to  the Supreme  Court  was or is not less than Rs.  20,000  or  the Judgment,  decree  or  final  order  involves  directly   or indirectly some claim or question respecting property of the like  amount  or  value.  Sub-clause (c) is  free  from  any monetary  valuation, and under it a special certificate  can be  issued  even  in cases  involving  claims  or  questions respecting  property less than Rs. 20,000 if the High  Court considers the case as fit for appeal.  Other  considerations then  apply which need not be considered here.  The  present appeal  involves  a consideration of sub-cls.  (a)  and  (b) only,  because, it is submitted, the certificate was  claim- able as of right. There  is, to begin with, no doubt that the amount or  value of  the subject matter of the dispute in the High Court  and still  in dispute on appeal to this Court is well above  Rs. 20,000.   This  attracts  sub-cl. (a).  In  any  event,  the decision of the High Court involves directly or indirectly a claim above that amount and that attracts sub-cl. (b).   Mr. M.  S. Gupta for the answering respondent does  not  rightly contest  this  fact.  He submits that cl. (1) of  Art.  133, considered as a whole, gives a right of appeal only  against judgments, decrees or final orders passed by the High  Court in  the  exercise of either the  appellate  jurisdiction  or ordinary  original  civil jurisdiction (where a  High  Court possesses  that jurisdiction under its Letters  Patent)  but not against a judgment, decree or final order passed in  the exercise of extra-ordinary original civil jurisdiction under Art.  226 of the Constitution.  He further submits  that  an order dismissing summarily a petition under Art. 226 of  the Constitution  is not a judgment, decree or final order  from which an appeal can properly be brought under 203 Art. 133.  Lastly, he submits that a proceeding commenced on an application for a writ is not a civil proceeding at all. Article 133 must cover all civil proceedings because no  ex- ception   is  indicated.   The  question  is   whether   the proceeding  in  the  High Court can be  described  as  civil proceedings.  The High Court in the present case was invited to interfere by issuing writs of certiorari and  prohibition against  the  reopening  of the case  in  which  the  Claims Officer   had  discharged  a  debt  due  to  the   answering respondent.   The  revenue authorities in such  matters  act analogously to civil courts, have a duty to act  judicially, and  pronounce upon the rights of parties.  In  the  present case the Claims Officer purported to exercise a jurisdiction under  which  he could order the discharge of a  debt  which means  that  the  order affected the  civil  rights  of  the parties.   The Commissioner’s order reversing the  order  of the  Claims Officer also affected the same civil  rights  of the parties.  The proceedings before the revenue authorities thus were concerned with the civil rights of two  contending parties.   They were civil proceedings.  The proceedings  in the High Court must also be regarded as of the same  nature. The  term  civil proceeding has been held in this  Court  to include,  at least, all proceedings affecting civil  rights, which  are  not criminal.  The dichotomy between  civil  and criminal  proceedings  made  by the  Civil  Law  jurists  is apparently followed in Arts. 133 and 134 and any  proceeding affecting  civil i.e. private rights, which is not  criminal in  nature, is civil.  This view was expressed  recently  by

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this  Court  in S. A. L. Narayan Row and  another,  etc.  v. Ishwarlal Bhagwandas and another, etc.(1). Shah J,  speaking for the majority, first summarises all the provisions in the Constitution  bearing upon appeals to this Court  and  after analysis,  holds that the words "civil proceeding" are  used in  the widest sense, that in contradistinction to  criminal proceedings they cover all proceedings which affect directly civil rights.  ’LA’ proceeding under Art. 226 for a writ  to bring  up  a proceeding for consideration must  be  a  civil proceeding,  if  the  original  proceeding  concerned  civil rights.  Here the civil rights of the parties were  directly involved and the proceeding before the High Court was thus a civil  proceeding.  The first requisite for the  application of Art. 133(1) is thus satisfied. The  next  question  is  what are  the  different  kinds  of decisions  from  which  appeals lie  under  Art.  133.   Mr. Gupta’s  contention  that under that article an  appeal  can only  lie in respect of a judgment or decree or final  order passed in the exercise of appel- (1)  A.I.R. 1965 S.C. 1818 :[1966] 1 .S.C.R. 190 204 late  or  ordinary original civil jurisdiction  but  not  of extraordinary original civil jurisdiction, is not right.  He is  apparently harking back to the provisions for appeal  in ss.  109  and  1  1 0 of the Code  of  Civil  Procedure  and inasmuch  as  appeals under those  sections  were  available against  judgments, decrees and final orders passed  in  the exercise  of  appellate or ordinary  original  civil  juris- dictions only, he thinks, the same position continues  still to  obtain and judgments, decrees or final orders passed  in the   exercise   of   the   extraordinary   original   civil jurisdiction  are  excluded.  He seeks, in other  words,  to limit  the opening words of Art. 133(1) by reference to  the history of appeals to the Privy Council under ss. 109 and  1 10  of the Code of Civil Procedure.  In  Municipal  Officer, Aden v. Abdul Karim(1) this distinction in fact was made and the provisions of the amended cl. (40) of the Letters Patent of the Bombay High Court were called in aid.  Mr. Gupta can- not avail himself of the same argument in view of the use of the  words "any judgment, decree or final order in  a  civil proceeding  of  a High Court" in the opening  part  of  Art. 133(1).   Article  133  not only  discards  the  distinction between    appellate   and   original   jurisdictions    but deliberately  used words which are as wide as  language  can make  them.   The  intention  is not  only  to  include  all judgments,  decrees  and orders passed in  the  exercise  of appellate and ordinary original civil jurisdiction but  also to   make   the  language  wide  enough   to   cover   other jurisdictions under which civil rights would come before the High  Court for decision.  The drafters of the  Constitution were  aware that a new jurisdiction was being conferred  oil the  High  Courts  by  Art.  226  of  the  Constitution  and proceedings   before  any  court  or  Tribunal  within   the jurisdiction  of  the High Court, including  in  appropriate cases  before  Government would be brought before  the  High Court  and  dealt  with  by  issuing  writs  of  certiorari, mandamus  and prohibition.  That the new jurisdiction  would often  result  in  decisions affecting  civil  i.e.  private rights  must have been apparent and the need to provide  for appeals to this Court from the determinations of the  Courts must have been equally obvious.  The right of appeal to this Court is thus stated in general words in Arts. 132, 133  and no exception not mentioned in the articles can be implied. Cases  involving an interpretation of the  Constitution  are dealt  with in Art. 132.  That article covers all  cases  in

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which  a High Court certifies that any judgment,  decree  or final  order  of  the  High  Court  involves  a  substantial question as to the interpretation (1)  I.L.R. 28 Bom. 292. 20 5 of  the Constitution.  A certificate under that article  may issue in any civil, criminal or other proceeding to bring to appeal a judgment, decree or final order of the High  Court. The   reference  to  "other  proceedings"   was   considered necessary  because there are certain proceedings, which  are not  strictly civil or criminal in nature and they  may  yet involve  the  interpretation of the  constitution.   Article 132, therefore, omits no decision if a substantial  question as to the interpretation of the Constitution is necessary to be  decided,  provided,  of course,  that  the  decision  in respect  of which the certificate is asked or granted is  "a judgment, decree or final order". Article 133, on the other hand, provides for appeals against any judgment, decree or final order in a "civil proceeding". We  have explained what is meant by a civil  proceeding  and have  held that such proceedings must concern  civil  rights including  those  arising from status as well  as  contract. Once that test is satisfied the word "Proceeding" is a  word of  very wide import.  We have held that the  proceeding  in the  High Court was a civil proceeding and although  it  was for   the   exercise   of   extraordinary   original   civil jurisdiction,  the  word  "any"  must  take  in  a  decision provided it is a judgment, decree or final order. Mr. Gupta, however, submits that the order of the High Court was  not "a judgment, decree or final order" and  gives  two reasons.   He says that as the order said nothing about  the merits  of the controversy it cannot amount to the  kind  of determination  which those words contemplate and that as  it does  not of its own force affect the rights of the  parties or  finally  put  an end to the  controversy  it  cannot  be regarded as final. There is no doubt that the order must possess a finality for that is what the article itself says.  It is also true  that it has been held that an order is not a final order,  unless it  finally disposes of the rights of the parties  and  does not leave them to be determined in the ordinary way or as it is  said that if the suit is still a live suit in which  the rights of the parties have still to be determined, there  is no  finality and no appeal lies.  Mr. Gupta has  brought  to our notice all the cases of the Judicial Committee and  this Court in which this test has been applied. The  submissions  of Mr. Gupta would have  had  considerable force  if we were considering the exercise of  appellate  or revisional jurisdictions of the High Court and the whole  of the controversy had not been decided by the High Court.   An appeal and a revision is a continuation of the original suit or proceeding and the 20 6 finality  must therefore attach to the whole of  the  matter and the matter should not be a live one after the,  decision of  the High Court if it is to be regarded as final for  the purpose of appeal under Art. 133. We  are  concerned here with the exercise  of  extraordinary original  civil  jurisdiction under Art.  226.   Under  that jurisdiction,  the  High Court does not hear  an  appeal  or revision.  The High Court is moved to intervene and to bring before  itself, the record of a case decided by  or  pending before a court or tribunal or any authority within the  High Court’s jurisdiction.  A petition to the High Court invoking this  jurisdiction is a proceeding quite independent of  the

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original controversy.  The controversy in the High Court, in proceedings  arising under Art. 226 ordinarily is whether  a decision  of or a proceeding before, a court or tribunal  or authority, should be allowed to stand or should be  quashed, for  want  of jurisdiction or on account of  errors  of  law apparent  on  the  face of the record.  A  decision  in  the exercise of this jurisdiction, whether interfering with  the proceeding  impugned  or  declining to do  so,  is  a  final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it.  But it is  not  to be taken that any order will be a  final  order. There are orders and orders.  The question will always arise what  has the High Court decided and what is the  effect  of the  order.   If, for example, the High  Court  declines  to interfere  because all the remedies open under the  law  are not  exhausted, the order of the High Court may not  possess that finality which the article contemplates.  But the order would  be  final  if  the  jurisdiction  of  a  tribunal  is questioned and the High Court either upholds it or does not, In either case the controversy in the High Court is  finally decided.  To judge whether the order is final in that  sense it  is  not always necessary to correlate  the  decision  in every  case with the facts in controversy  especially  where the  question  is  one  of  jurisdiction  of  the  court  or tribunal.   The answer to the question whether the order  is final  or not will not depend on whether the controversy  is finally  over but whether the controversy raised before  the High Court is finally over or not.  If it is, the order will be  appealable provided the other conditions are  satisfied, otherwise not. In  the  present case the question raised  was  whether  the Commissioner had jurisdiction to set aside the discharge  of the  debt ordered by the Claims Officer.  This  jurisdiction was challenged by the proceedings under Art. 226.  The  High Court sum-                             207 marily  dismissed the petition.  In other words,  it  upheld the  jurisdiction  and  in the  circumstances  it  makes  no difference  whether  the High Court  pronounced  a  speaking order  or not.  By its decision the High Court  has  finally decided the question of jurisdiction.  It is obvious that if the  High  Court  had  decided to hold  that  there  was  no jurisdiction,  the  debt would have stood  discharged.   The order  once  again revived the debt.  Now the order  of  the Commissioner was challenged on the ground of jurisdiction in a  separate proceeding.  The High Court decided  to  dismiss the petition and the order that was passed must be  regarded as  final for the purpose of appeal to this Court.   As  the other  requirements of the article were satisfied  the  High Court was in error in refusing the certificate in this case. The  appeal must, therefore, succeed.  The order dated  Feb- ruary 1, 1965 is set aside and the case will now go back  to the  High  Court for disposal according to law.   The  first respondent shall bear the costs of the appellant. Civil Miscellaneous Petition No. 2180 of 1965 was not press- ed and is dismissed.  There will be no order as to costs  in this petition. Appeal allowed. 208