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 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] 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
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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
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.
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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).
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
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
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
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