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PETITIONER: SARDAR SYEDNA TAHERSAIFUDDIN SAHEB

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 27/11/1957

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA BOSE, VIVIAN DAS, SUDHI RANJAN (CJ) DAS, S.K. SARKAR, A.K.

CITATION:  1958 AIR  253            1958 SCR 1010

ACT:   Practice-Appeal-Maintainability---Suit  based on  Personal right-Death of plaintiff pending appeal-Bombay Prevention of Excommunication Act, 1949 (Bombay XLII of 1949).     Supreme  Court-Appeal  against  interlocutory   finding- Certificate by High Court-Competence-Constitution of  India, Arts, 132, 133.

HEADNOTE: The  appellant  as the religious head of his  community  ex- communicated T who thereupon filed a suit for a  declaration that  the  order of excommunication was invalid.   When  the suit  was pending the Bombay Prevention  of  Excommunication Act,  1949, was passed and one of issues raised in the  suit was  whether  the order of excommunication  was  invalid  by reason  of the provisions of the Act.  This issue was  tried as a preliminary issue and (1) (1948) L.R. 75 I. A. 30. 128 1008 as it raised the question of the vires of the Act, the State of Bombay was impleaded as the second defendant in the suit. The  Bombay  High  Court  decided  the  issue  against   the appellant,  but  granted  a certificate  to  appeal  to  the Supreme Court under Arts. 132 and 133 Of the Constitution of India.  Pending the appeal the plaintiff died and the action which  was  personal  to him consequently  abated.   It  was contended for the appellant that as the State of Bombay  had been  impleaded as a party and that as the decision  on  the question  of  the  vires of the Act had been  given  in  its presence, the appellant was entitled to continue the  appeal against  the  State without reference to the  plaintiff  and seek the decision of the Court on the validity of the Act : Held, that the appeal must be dismissed as not maintainable, because  (1) the appeal was only a continuation of the  suit which,  in the events, had abated, and (2)  the  certificate under Arts. 132 and I33 of the Constitution was incompetent, as  it could not be granted in respect of  an  interlocutory finding.

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The United Provinces v. Mst.  Atiqa Begum and Others, [1940] F.C.R. 110, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 99 of 1954. Appeal  from the judgment and order dated the  20th  August, 1952,  of  the Bombay High Court in Appeal No.  43  of  1952 arising out of Original Suit No. 1262 of 1949. N.   C. Chatterjee, J. B. Dadachanji and Rameshwar Nath, for the appellant. Porus A. Mehta and R. H. Dhebar, for the respondent. 1957.  November 27.  The following Judgment of the Court was delivered by VENKATARAMA AIYAR J.-On February 28,1934, the Appellant  who is the religious head of the Dawoodi Bohra Community, passed an  order excommunicating one Tyebbhai Moosaji  Koicha.   On July 17, 1920, the appellant had excommunicated two persons, Tahirbhai  and Hasan Ali, and the validity of the order  was questioned  in  a  suit  instituted  in  the  Court  of  the Subordinate Judge, Barhampur.  The litigation went up to the Privy  Council,  which  held  that  the  appellant  as   the religious  head had the power to excommunicate a  member  of the  community, but that that power could only be  exercised after observing the requisite 1009 formalities, and as in that case that had not been done, the order  of  excommunication was invalid.  Vide Hasan  Ali  v. Mansoorali (1). Apprehending  that  the order dated February 28,  1934,  was open  to  challenge  under  the decision  in  Hasan  Ali  v. Mansoorali  (supra) on the ground that it had  not  complied with the requisite formalities, the appellant started  fresh proceedings, and on April 28, 1948, passed another order  of excommunication.   Thereupon,  Tyebbhai  Moosaji  filed  the present  suit  for  a declaration that both  the  orders  of excommunication dated February 28, 1934, and April 28, 1948, were invalid and for other consequential reliefs. While  this  action  was pending,  the  Legislature  of  the Province   of  Bombay  passed  the  Bombay   Prevention   of Excommunication  Act  (Bombay  XLII  of  1949)   prohibiting excommunication,  and  that came into force on  November  1, 1949.   The  plaintiff  contended that the  effect  of  this legislation  was  to render the  orders  of  excommunication illegal.   The  answer of the appellant to  this  contention was,  firstly, that the Act had no retrospective  operation, and that, in consequence, the orders passed on February  28, 1934,   and  April  28,  1948,  were  valid,  and   remained unaffected  by  it; and secondly, that the  Act  was  itself unconstitutional, because the subject matter of the impugned legislation was not covered by any of the entries in List  2 or  3  of Seventh Schedule to the Government of  India  Act, 1935,  and the Legislature of the Province of Bombay had  no competence to enact the law.  After the coming into force of the  Constitution, the contention was also raised  that  the right of the defendant to excommunicate members of the  com- munity was protected by Arts. 25 and 26 of the Constitution, and that the impugned Act was void as infringing the same. The  issues in the action were then settled, and  issue  No. 19,   which   was  raised  with  reference  to   the   above contentions,  was  as  follows: " Whether the orders of excommunication made in 1934  and/or 1948 are invalid by reason of the (1)  A.I.R. 1948 P.C. 66.

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1010 provisions  of the Bombay Prevention of Excommunication  Act of 1949?" This was tried as a preliminary issue, and as it raised  the question of the vires of a statute, the State of Bombay  was impleaded  as the second defendant in the suit.  Shah  J.who tried   this   issue,  held  that  the  impugned   Act   was retrospective  in  its  operation, that it  was  within  the competence  of the Provincial Legislature, and further  that it did not offend Arts. 25 and 26 of the Constitution. Against  this  finding, the present appellant  preferred  an appeal  to  a Bench of the Bombay High Court, and  that  was heard  by Chagla C. J. and Bhagwati J. who held  that  under the  Act,  excommunication  meant  the  condition  of  being expelled,  that it was a continuous state during  which  the person  excommunicated  was  deprived  of  his  rights   and privileges,  and that, therefore, the Act would  operate  to protect  those rights from the date it came into  operation. They further held that the Act was within the competence  of the Legislature, and they also repelled the contention  that it infringed the rights guaranteed under Arts. 25 and 26  of the  Constitution.   In the result, they  concurred  in  the decision  of Shah J. and dismissed the appeal but granted  a certificate to appeal to this Court under Arts. 132 and  133 of the Constitution.  Hence this appeal. Pending  the appeal, the plaintiff died on March  11,  1953, and his daughter applied on May 22, 1953, to be  substituted in  his  place.   But  eventually  she  did  not  press  the application, and that was dismissed on October 5, 1953.   In this  Court by an order dated November 21, 1955,  the  cause title  was  amended by deleting the name of  the  plaintiff. Thus, the only parties who are now before the Court are  the defendant and the State of Bombay. The  question is whether in the events which have  happened, the  appeal can proceed.  We are of opinion that it  cannot. It  should be remembered in this connection that  no  decree had been passed in the suit.  Only a finding has been  given on a preliminary point, and it is that finding that has been the subject of                             1011 appeal  to the High Court of Bombay and thereafter  to  this Court.   There are other issues still to be tried,  and  the action is thus undetermined.  Now, the claim with which  the plaintiff   came   to  Court  was  that   he   was   wrongly excommunicated, and that was an action personal to him.   On the principle, actio personalis moritur cum persona when  he died the suit should abate.  As a matter of fact, his  legal representative  applied  to be brought on  record,  but  the application  was not pressed.  The result is that  the  suit has  abated.  This would ordinarily entail the dismissal  of this appeal. Mr.  N. C. Chatterjee for the appellant argues that  as  the State  of Bombay had been impleaded as a party, and that  as the  decision  on the question of the vires of the  Act  had been  given  in its presence, the appellant is  entitled  to continue  the appeal against the State without reference  to the  plaintiff  and seek the decision of this Court  on  the validity  of  the Act ; and relies on the  decision  of  the Federal  Court in The United Provinces v. Mst.  Atiqa  Begum and  others (1).  There, a suit was filed by a landlord  for recovery  of rent.  While it was pending in appeal,  an  Act was  passed  by  the Legislature  of  the  United  Provinces validating  certain Government notifications  requiring  the landlords  to  give to the tenants remission of  rent.   The landlord contended that the Act was ultra vires, and a  Full

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Bench  of  the Allahabad High Court, for whose  opinion  the question   was  referred,  agreed  with   this   contention. Thereafter,  the  Government  of the  United  Provinces  got itself  impleaded as a party to the appeal of the  landlord, and a decision having been given therein in accordance  with the opinion of the Full Bench, it preferred an appeal to the Federal  Court on a certificate granted under s. 205 of  the Government  of  India  Act, 1935,  and  contended  that  the impugned Act was valid.  The judgment-debtor himself did not file  any appeal.  The question was whether  the  Government was  entitled  to  file the appeal when the  party  had  not chosen  to contest the decree.  It was held by  the  Federal Court that the scope of (1)  [1940] F.C.R. 110. 1012 s.   205 of the Government of India Act was wider than  that of  s.  96  of  the  Civil  Procedure  Code,  and  that  the Government  was  entitled to file the appeal for  getting  a decision on the validity of the Act, notwithstanding that it had no interest in the claim in the suit.  This ruling  has, in  our opinion, no application to the facts of the  present case.  Here, the action itself has abated, and there can  be no  question of an appeal in relation thereto, as an  appeal is  only  a continuation of the suit, and there  can  be  no question of continuing what does not exist. But apart from this, there is another formidable obstacle in the way of the appellant.  Under Art. 132, an appeal lies to this Court only against judgments, decrees or final  orders. That was also the position under s. 205 of the Government of India  Act.   Now,  the order appealed  against  is  only  a decision  on one of the issues, and it does not  dispose  of the suit.  In The United Provinces v. Mst.  Atiqa Begum  and others (supra), there was a decree, and the requirements  of s.  205 were satisfied.  Here, there is only a finding on  a preliminary  issue, and there is no decree or  final  order. The Explanation to Art. 132 provides that: "For  the  purposes of this Article, 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." Applying this test, even if we accept the contention of  the appellant  that  the  impugned Act is bad,  that  would  not finally  dispose  of the suit, as there  are  other  issues, which have to be tried.  We are clearly of opinion that  the appeal is not competent under Art. 132, and the fact that  a certificate has been given does not alter the position.   It is  said  that the certificate is also under Art.  133,  but under  that  article  also,  an  appeal  lies  Only  against judgments, decrees or final orders, and no certificate could be granted in respect of an interlocutory finding. The  result  is that this appeal must be dismissed,  as  not maintainable.  We should add by way of abundant caution that as we express no opinion on the 1013 correctness  of the decision under appeal, this  order  will not  preclude the appellant from claiming such rights as  he may have, in appropriate proceedings which he may take.   In the circumstances, there will be no order as to costs.                      Appeal dismissed.