{"id":1923,"date":"1966-01-06T00:00:00","date_gmt":"1966-01-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramesh-and-another-vs-seth-gendalal-motilal-patni-and-on-6-january-1966"},"modified":"2017-12-25T16:36:39","modified_gmt":"2017-12-25T11:06:39","slug":"ramesh-and-another-vs-seth-gendalal-motilal-patni-and-on-6-january-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramesh-and-another-vs-seth-gendalal-motilal-patni-and-on-6-january-1966","title":{"rendered":"Ramesh And Another vs Seth Gendalal Motilal Patni And … on 6 January, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ramesh And Another vs Seth Gendalal Motilal Patni And … on 6 January, 1966<\/div>\n
Equivalent citations: 1966 AIR 1445, \t\t 1966 SCR (3) 198<\/div>\n
Author: Hidayatullah<\/div>\n
Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Ramaswami, V., Satyanarayanaraju, P.<\/div>\n
           PETITIONER:\nRAMESH AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nSETH GENDALAL MOTILAL PATNI AND OTHERS\n\nDATE OF JUDGMENT:\n06\/01\/1966\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nGAJENDRAGADKAR, P.B. (CJ)\nWANCHOO, K.N.\nRAMASWAMI, V.\nSATYANARAYANARAJU, P.\n\nCITATION:\n 1966 AIR 1445\t\t  1966 SCR  (3) 198\n CITATOR INFO :\n RF\t    1967 SC1182\t (8)\n R\t    1968 SC 733\t (8,10,11)\n F\t    1968 SC1227\t (3)\n F\t    1970 SC1972\t (5,6,7)\n R\t    1971 SC 100\t (6,7)\n RF\t    1971 SC 771\t (1)\n D\t    1971 SC2319\t (1)\n R\t    1972 SC1598\t (12,13)\n R\t    1978 SC  47\t (15)\n C\t    1980 SC 962\t (59)\n RF\t    1986 SC1272\t (88)\n\n\nACT:\nConstitution  of  India,  Art. 133-Appeal  whether  lies  to\nSupreme Court from High Court's order in extraordinary civil\njurisdiction under Art. 226--Proceeding under Art. 226\twhen\na 'civil proceeding'-Final order, what is.\n\n\n\nHEADNOTE:\nIn  proceedings\t under\ts.  19(1)  of  the  Madhya   Pradesh\nAbolition of Proprietary Rights (Estates, Mahals,  Alienated\nLands)\tAct, 1950, on the application of the  appellant,  it\nwas  held by the Claims Officer that the debt due to P,\t the\nfirst respondent, was a secured debt despite the fact  that\na decree had been passed in respect of the debt.  The Claims\nOfficer asked P to file a statement of claim under s. 22  of\nthe Act.  Although the Board of Revenue held that the Claims\nOfficer had no Jurisdiction to determine the nature of debt,\nP,  by way of caution, filed a statement of claim  under  r.\n22.   The  Claims  Officer held it to be  out  of  time\t and\ndischarged  the debt.  On appeal by P the Commissioner\theld\nthat although the Claims Officer had jurisdiction to  decide\non  the nature of the debt, the debt was wrongly  discharged\nby  him\t as action under s. 22(1) had not been\ttaken.\t The\nappellant thereupon filed a petition under Arts. 226 and 227\non  the\t ground\t inter alia that  the  Commissioner  had  no\njurisdiction  to entertain and decide the appeal.  The\tHigh\nCourt summarily dismissed the petition.\t The appellants next\napplied for a certificate of fitness which was refused.\t The\nappellants  came  to this Court by special leave!  and\tcon-\ntended\t that  the  High  Court\t had  wrongly  refused\t the\ncertificate.   The questions that came up for  consideration\nwere  : (i) Whether the petition under Art. 226 in the\tHigh\nCourt was a 'civil proceeding', (2) whether an appeal  under\nArt.  133  lay only in a proceeding in the exercise  of\t the\nappellate or ordinary civil jurisdiction of the High  Court,\nand not the extraordinary original civil jurisdiction  under\nArt.  226  and\t(3)  whether the order\tof  the\t High  Court\nsummarily dismissing the writ petition of the appellants was\na final order.\nHELD  : (i) A proceeding under Art. 226 for a writ to  bring\nup a proceeding for consideration is a 'civil proceeding' if\nthe original proceeding concerned civil rights. [203 G]\nThe dichotomy between civil and criminal proceedings made by\nthe  civil law jurists is apparently followed in  Arts.\t 133\nand  134  and any proceeding affecting\tcivil  i.e.  private\nrights, which is not criminal in nature, is civil. [203 E]\nS.   A,.  L.  Narayan Row & Anr. v. Ishwarlal  Bhagwandas  &\nAnr., A.I.R.<\/a>   1965  S.C. 1818, [1966] 1 S.C.R. 190,  relied\non.\nIn   the  present  case\t the  Claims  Officer  purported  to\nexercise  a  jurisdiction  under which he  could  order\t the\ndischarge of a debt which means that the order affected\t the\ncivil  rights  of  the parties.\t  The  Commissioner's  order\nreversing the order of the Claims Officer also affected\t the\nsame  civil  rights.   The proceedings\tbefore\tthe  revenue\nauthorities were therefore\n199\ncivil  proceedings and those in the High Court must also  be\nregarded as, of the same nature. [203 C-E]\n(ii) It\t is not permissible by reference to the history\t of\nappeals\t to the Privy Council under ss. 109 and 110  of\t the\nCivil  Procedure Code to exclude from the scope of Art.\t 133\nmatters\t heard\tby  the\t High  Court  in  the  exercise\t  of\nextraordinary original civil jurisdiction.  Article 133 Uses\nthe widest possible language.  The intention is not only  to\ninclude\t all  judgments, decrees and orders  passed  in\t the\nexercise  of appellate and ordinary civil  jurisdiction\t but\nother jurisdictions as well in which civil rights would come\nup before the High Court for decision.\tThe drafters of\t the\nConstitution  were aware that a new jurisdiction  was  being\nconferred on the High Courts under Art. 226 and that the new\njurisdiction would often result. in decision affecting civil\ni.e. private rights, and the need to provide, for appeals to\nthis  Court against such decisions must have  been  obvious.\nThe right of appeal is thus stated in general words in Arts.\n132  and 133 and no exception not mentioned in the  articles\ncan be implied. [204 D-G]\n(iii)\t  A petition to the High Court invoking jurisdiction\nunder  Art.  226 is a proceeding quite\tindependent  of\t the\noriginal  controversy.\tA decision in the exercise  of\tthis\njurisdiction   whether\tinterfering  with  the\t proceedings\nimpugned or declining to do so is a final decision in so far\nas the High Court is concerned if the effect is to terminate\nthe controversy before it. [206 C-D]\nIn  the present case the High Court by summarily  dismissing\nthe appellants' writ petition upheld the jurisdiction of the\nCommissioner to make the order he did and the fact that\t the\nHigh  Court's  order  was  not\ta  speaking  order  made  no\ndifference.   The High Court's order had the affect of\tonce\nagain  reviving\t the debt in question.\tThe  order  must  be\nregarded  as final for the purpose of appeal to this  Court.\n[206 H-207 C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 950 of 1965.
\nAppeal\tby special leave from the judgment and\torder  dated
\nFebruary 1, 1965 of the Bombay High Court (Nagpur Bench)  at
\nNagpur in Misc.\t Application No. 13 of 1965.
\nC.   B.\t Agarwala, B. R. L. Iyengar, G. L. Sanghi and A.  G.
\nRatnaparkhi, for the appellant.\n<\/p>\n
M.   S. Gupta, for respondent No. 1<\/span><\/p>\n
D.   R.\t Prem and B. R. G. K. Achar, for respondents Nos.  2
\nand 3.\n<\/p>\n
The judgment of the Court was delivered by
\nHidayatullah, J. This is an appeal by special leave  against
\nan order dated February 1, 1965 of the High Court of  Bombay
\n(Nagpur\t Bench)\t in Miscellaneous Petition No.\t13  of\t1965
\nrefusing a certificate under Art. 133 (Is) (a) or (c) of the
\nConstitution.  This certificate was asked by the  appellants
\nin  respect of the order of the High Court  dated  September
\n21, 1964 in Special Civil Application No. 471 of 1964.\tBoth
\nthese  orders summarily dismissed the respective  petitions.
\nAgainst the main order Special
\n200<\/span>
\nLeave Petition (Civil) No. 395 of 1965 has been filed but by
\nan order of this Court dated July 30, 1965, it has been kept
\nPending\t sine  die with liberty to bring it up\tfor  hearing
\nafter  the disposal of the present appeal.  This is  because
\nthe  appellants claim in this appeal that appeal lay  as  of
\nright to this court and the certificate was wrongly  refused
\nby  the High Court.  Before we discuss the  question  mooted
\nbefore\tus  we\tshall state the\t facts\tsufficient  for\t the
\npurpose.\n<\/p>\n
On  the\t passing  of the Madhya Pradesh\t Abolition  of\tPro-
\nprietary  Rights  (Estates  Mahals, Alienated  Lands)  Act,
\n1950,  the appellants applied under s. 19(1) of the Act\t for
\nthe determination of their debts, specifying the amounts and
\nparticulars  of all secured debts and claims  together\twith
\nthe  names  of the creditors.  One such creditor,  named  by
\nthem, is Gendalal Motilal Patni who is the first respondent.
\nHis debt was a mortgage debt originally but had resulted  in
\na  decree  for Rs. 2,16,309.  Patni objected that  this\t had
\nceased\tto  be\ta  secured debt or  secured  claim  for\t the
\napplication  of\t S.  17\t (a)  of  the  Abolition  Act.\t The
\nobjection was taken under s. 21.\n<\/p>\n
The  Claims Officer overruled the objection of Patni  by  an
\norder  dated November 19, 1951.\t ‘He held that although\t the
\ndebt  had  merged  in a decree it remained  a  secured\tdebt
\nnevertheless  and that as the amount was recoverable on\t the
\ndate  of vesting, the provisions of the Act were  applicable
\nto it.\tBy another order of the same date the Claims Officer
\ncalled upon Patni to file his statement of claim under S. 22
\nof  the Act.  Patni did not file the statement\tbut  instead
\npreferred an appeal against the main order before the former
\nMadhya Pradesh Board of Revenue.  The Board of Revenue\theld
\non June 15, 1954 that the Claims Officer had no jurisdiction
\nto  determine the character of the debt and only  the  Civil
\nCourt could decide this issue.\tIn reaching this  conclusion
\nthe  Board  followed  a decision of the\t Nagpur\t High  Court
\nreported in Ramkrishna v. Board of Revenue(1).
\nPatni next moved the Civil Court and the Civil Court decided
\nthat  the  debt\t in  question was a  secured  debt  for\t the
\napplication  of\t the Abolition Act.  Patni appealed  to\t the
\nHigh  Court but out of caution filed his statement of  claim
\nbefore\tthe  Claims Officer on January 23,  1958.   The\t ex-
\nproprietors (the appellants here) Objected to the  statement
\non  the ground that it was out of time, and asked  that\t the
\nclaim  be held discharged.  The Claims Officer accepted\t the
\nobjection and discharged the claim by an order dated
\n(1)  A.T.R. 1954 Nag. 248.\n<\/p>\n
\t\t\t    201<\/span><\/p>\n
December 24, 1962.  Patni appealed to the Commissioner, Nag-
\npur Division, Nagpur (Rev.  Appeal No. 2\/57\/62\/63) and by an
\norder of May 5, 1964 the order of the Claims Officer was set
\naside.\t The Commissioner pointed out that the\tdecision  of
\nthe  Nagpur High Court earlier referred to was overruled  in
\nthe  subsequent\t case of the High Court reported  in  A.I.R.
\n1956  Nagpur 193 and the Claims Officer had jurisdiction  to
\npronounce  on the character of the debt.  The order  of\t the
\nClaims\tOfficer of November 19, 1951 was thus held  to\thave
\nrevived\t but  the claim could not be  discharged  as  action
\nunder s. 22(1) had not been taken.  The case was remanded to
\nthe Claims Officer for disposal according to law.
\n The  appellants thereupon filed a petition under Arts.\t 226
\nand  227  of the Constitution in the High  Court  of  Bombay
\n(Nagpur\t Bench) on the ground that the Commissioner  had  no
\njurisdiction to entertain and decide the appeal and that the
\nClaims\t Officer  had  ordered\tthe  continuation   of\t the
\nproceedings and so the order of the Commissioner was  wrong.
\nThe High Court summarily dismissed the petition by its first
\norder  dated September 21, 1964 against which Special  Leave
\nPetition  (Civil)  No.\t395 of 1965  has  been\tfiled.\t The
\nappellants next applied for a certificate which was  refused
\nby  order  dated February 1, 1965, impugned in\tthe  present
\nappeal,\t  and  the  question  involved\tis  :  whether\t the
\nappellants were entitled to a certificate as of right  under
\nArt. 133
\n(1)  (a) or (b) ?\n<\/p>\n
his question falls to be considered under Art. 133 of the
\nconstitution.\t That article reads :\n<\/p>\n
\t      133.  Appellate jurisdiction of Supreme  Court
\n\t      in appeals from High Courts in regard to civil
\n\t      matters.\n<\/p><\/blockquote>\n
\t      (1)An  appeal shall lie to the  Supreme  Court
\n\t      from any judgment, decree or final order in  a
\n\t      civil  proceeding\t of  a\tHigh  Court  in\t the
\n\t      territory\t  of   India  if  the\tHigh   Court
\n\t      certifies-\n<\/p><\/blockquote>\n
\t      (a)   that the amount or value of the subject-<\/p><\/blockquote>\n
\t      matter  of the dispute in the court  of  first
\n\t      instance\tand still in dispute on\t appeal\t was
\n\t      and is not less than twenty thousand rupees or
\n\t      such  other  sum as may be specified  in\tthat
\n\t      behalf by Parliament by law; or\n<\/p>\n
\t      (b)   that the judgment, decree or final order
\n\t      involves directly or indirectly some claim  or
\n\t      question
\n19 Sup CI\/66-14
\n202<\/span>
\n\t      respecting  property  of the  like  amount  or
\n\t      value; or\n<\/p>\n
\t      (c)   that the case is a fit one for appeal to
\n\t      the  Supreme Court; and, where  the  judgment,
\n\t      decree  or final order appealed  from  affirms
\n\t      the decision of the court immediately below in
\n\t      any case other than a case referred to in sub-
\n\t      clause   (c).  if\t the  High   Court   further
\n\t      certifies\t  that\tthe  appeal  involves\tsome
\n\t      substantial question of law.\n<\/p>\n
\t      (Clauses\t(2)  and  (3) of Art.  133  are\t not
\n\t      relevant).\n<\/p>\n
Under  sub-cls.\t (a) and (b) of cl. (1) of this\t article  an
\nappeal\tlies  on  certificate  of  the\tHigh  Court.\tThat
\ncertificate may only be issued in cases in which the  amount
\nor  value of the subject matter of the dispute in the  court
\nof  first  instance and still in dispute on  appeal  to\t the
\nSupreme\t Court\twas or is not less than Rs.  20,000  or\t the
\nJudgment,  decree  or  final  order  involves  directly\t  or
\nindirectly some claim or question respecting property of the
\nlike  amount  or  value.  Sub-clause (c) is  free  from\t any
\nmonetary  valuation, and under it a special certificate\t can
\nbe  issued  even  in cases  involving  claims  or  questions
\nrespecting  property less than Rs. 20,000 if the High  Court
\nconsiders the case as fit for appeal.  Other  considerations
\nthen  apply which need not be considered here.\tThe  present
\nappeal\tinvolves  a consideration of sub-cls.  (a)  and\t (b)
\nonly,  because, it is submitted, the certificate was  claim-
\nable as of right.\n<\/p>\n
There  is, to begin with, no doubt that the amount or  value
\nof  the subject matter of the dispute in the High Court\t and
\nstill  in dispute on appeal to this Court is well above\t Rs.
\n20,000.\t  This\tattracts  sub-cl. (a).\tIn  any\t event,\t the
\ndecision of the High Court involves directly or indirectly a
\nclaim above that amount and that attracts sub-cl. (b).\t Mr.
\nM.  S. Gupta for the answering respondent does\tnot  rightly
\ncontest\t this  fact.  He submits that cl. (1) of  Art.\t133,
\nconsidered as a whole, gives a right of appeal only  against
\njudgments, decrees or final orders passed by the High  Court
\nin  the\t exercise of either the\t appellate  jurisdiction  or
\nordinary  original  civil jurisdiction (where a\t High  Court
\npossesses  that jurisdiction under its Letters\tPatent)\t but
\nnot against a judgment, decree or final order passed in\t the
\nexercise of extra-ordinary original civil jurisdiction under
\nArt.  226 of the Constitution.\tHe further submits  that  an
\norder dismissing summarily a petition under Art. 226 of\t the
\nConstitution  is not a judgment, decree or final order\tfrom
\nwhich an appeal can properly be brought under
\n203<\/span>
\nArt. 133.  Lastly, he submits that a proceeding commenced on
\nan application for a writ is not a civil proceeding at all.
\nArticle 133 must cover all civil proceedings because no\t ex-
\nception\t  is  indicated.   The\tquestion  is   whether\t the
\nproceeding  in\tthe  High Court can be\tdescribed  as  civil
\nproceedings.  The High Court in the present case was invited
\nto interfere by issuing writs of certiorari and\t prohibition
\nagainst\t the  reopening\t of the case  in  which\t the  Claims
\nOfficer\t  had  discharged  a  debt  due\t to  the   answering
\nrespondent.   The  revenue authorities in such\tmatters\t act
\nanalogously to civil courts, have a duty to act\t judicially,
\nand  pronounce upon the rights of parties.  In\tthe  present
\ncase the Claims Officer purported to exercise a jurisdiction
\nunder  which  he could order the discharge of a\t debt  which
\nmeans  that  the  order affected the  civil  rights  of\t the
\nparties.   The Commissioner’s order reversing the  order  of
\nthe  Claims Officer also affected the same civil  rights  of
\nthe parties.  The proceedings before the revenue authorities
\nthus were concerned with the civil rights of two  contending
\nparties.   They were civil proceedings.\t The proceedings  in
\nthe High Court must also be regarded as of the same  nature.
\nThe  term  civil proceeding has been held in this  Court  to
\ninclude,  at least, all proceedings affecting civil  rights,
\nwhich  are  not criminal.  The dichotomy between  civil\t and
\ncriminal  proceedings  made  by the  Civil  Law\t jurists  is
\napparently followed in Arts. 133 and 134 and any  proceeding
\naffecting  civil i.e. private rights, which is not  criminal
\nin  nature, is civil.  This view was expressed\trecently  by
\nthis  Court  in S. A. L. Narayan Row and  another,  etc.  v.
\nIshwarlal Bhagwandas and another, etc.(1). Shah J,  speaking
\nfor the majority, first summarises all the provisions in the
\nConstitution  bearing upon appeals to this Court  and  after
\nanalysis,  holds that the words “civil proceeding” are\tused
\nin  the widest sense, that in contradistinction to  criminal
\nproceedings they cover all proceedings which affect directly
\ncivil rights.  ‘LA’ proceeding under Art. 226 for a writ  to
\nbring  up  a proceeding for consideration must\tbe  a  civil
\nproceeding,  if\t the  original\tproceeding  concerned  civil
\nrights.\t Here the civil rights of the parties were  directly
\ninvolved and the proceeding before the High Court was thus a
\ncivil  proceeding.  The first requisite for the\t application
\nof Art. 133(1) is thus satisfied.\n<\/p>\n
The  next  question  is\t what are  the\tdifferent  kinds  of
\ndecisions  from\t which\tappeals lie  under  Art.  133.\t Mr.
\nGupta’s\t contention  that under that article an\t appeal\t can
\nonly  lie in respect of a judgment or decree or final  order
\npassed in the exercise of appel-\n<\/p>\n
(1)  A.I.R. 1965 S.C. 1818 :[1966] 1 .S.C.R. 190
\n204<\/span>
\nlate  or  ordinary original civil jurisdiction\tbut  not  of
\nextraordinary original civil jurisdiction, is not right.  He
\nis  apparently harking back to the provisions for appeal  in
\nss.  109  and  1  1 0 of the Code  of  Civil  Procedure\t and
\ninasmuch  as  appeals under those  sections  were  available
\nagainst\t judgments, decrees and final orders passed  in\t the
\nexercise  of  appellate or ordinary  original  civil  juris-
\ndictions only, he thinks, the same position continues  still
\nto  obtain and judgments, decrees or final orders passed  in
\nthe   exercise\t of   the   extraordinary   original   civil
\njurisdiction  are  excluded.  He seeks, in other  words,  to
\nlimit  the opening words of Art. 133(1) by reference to\t the
\nhistory of appeals to the Privy Council under ss. 109 and  1
\n10  of the Code of Civil Procedure.  In\t Municipal  Officer,
\nAden v. Abdul Karim(1) this distinction in fact was made and
\nthe provisions of the amended cl. (40) of the Letters Patent
\nof the Bombay High Court were called in aid.  Mr. Gupta can-
\nnot avail himself of the same argument in view of the use of
\nthe  words “any judgment, decree or final order in  a  civil
\nproceeding  of\ta High Court” in the opening  part  of\tArt.
\n133(1).\t  Article  133\tnot only  discards  the\t distinction
\nbetween\t   appellate   and   original\tjurisdictions\t but
\ndeliberately  used words which are as wide as  language\t can
\nmake  them.   The  intention  is not  only  to\tinclude\t all
\njudgments,  decrees  and orders passed in  the\texercise  of
\nappellate and ordinary original civil jurisdiction but\talso
\nto   make   the\t language  wide\t enough\t  to   cover   other
\njurisdictions under which civil rights would come before the
\nHigh  Court for decision.  The drafters of the\tConstitution
\nwere  aware that a new jurisdiction was being conferred\t oil
\nthe  High  Courts  by  Art.  226  of  the  Constitution\t and
\nproceedings   before  any  court  or  Tribunal\twithin\t the
\njurisdiction  of  the High Court, including  in\t appropriate
\ncases  before  Government would be brought before  the\tHigh
\nCourt  and  dealt  with\t by  issuing  writs  of\t certiorari,
\nmandamus  and prohibition.  That the new jurisdiction  would
\noften  result  in  decisions affecting\tcivil  i.e.  private
\nrights\tmust have been apparent and the need to provide\t for
\nappeals to this Court from the determinations of the  Courts
\nmust have been equally obvious.\t The right of appeal to this
\nCourt is thus stated in general words in Arts. 132, 133\t and
\nno exception not mentioned in the articles can be implied.
\nCases  involving an interpretation of the  Constitution\t are
\ndealt  with in Art. 132.  That article covers all  cases  in
\nwhich  a High Court certifies that any judgment,  decree  or
\nfinal  order  of  the  High  Court  involves  a\t substantial
\nquestion as to the interpretation
\n(1)  I.L.R. 28 Bom. 292.\n<\/p>\n
20 5
\nof  the Constitution.  A certificate under that article\t may
\nissue in any civil, criminal or other proceeding to bring to
\nappeal a judgment, decree or final order of the High  Court.
\nThe   reference\t to  “other  proceedings”   was\t  considered
\nnecessary  because there are certain proceedings, which\t are
\nnot  strictly civil or criminal in nature and they  may\t yet
\ninvolve\t the  interpretation of the  constitution.   Article
\n132, therefore, omits no decision if a substantial  question
\nas to the interpretation of the Constitution is necessary to
\nbe  decided,  provided,\t of course,  that  the\tdecision  in
\nrespect\t of which the certificate is asked or granted is  “a
\njudgment, decree or final order”.\n<\/p>\n
Article 133, on the other hand, provides for appeals against
\nany judgment, decree or final order in a “civil proceeding”.
\nWe  have explained what is meant by a civil  proceeding\t and
\nhave  held that such proceedings must concern  civil  rights
\nincluding  those  arising from status as well  as  contract.
\nOnce that test is satisfied the word “Proceeding” is a\tword
\nof  very wide import.  We have held that the  proceeding  in
\nthe  High Court was a civil proceeding and although  it\t was
\nfor   the   exercise   of   extraordinary   original   civil
\njurisdiction,  the  word  “any”\t must  take  in\t a  decision
\nprovided it is a judgment, decree or final order.
\nMr. Gupta, however, submits that the order of the High Court
\nwas  not “a judgment, decree or final order” and  gives\t two
\nreasons.   He says that as the order said nothing about\t the
\nmerits\tof the controversy it cannot amount to the  kind  of
\ndetermination  which those words contemplate and that as  it
\ndoes  not of its own force affect the rights of the  parties
\nor  finally  put  an end to the\t controversy  it  cannot  be
\nregarded as final.\n<\/p>\n
There is no doubt that the order must possess a finality for
\nthat is what the article itself says.  It is also true\tthat
\nit has been held that an order is not a final order,  unless
\nit  finally disposes of the rights of the parties  and\tdoes
\nnot leave them to be determined in the ordinary way or as it
\nis  said that if the suit is still a live suit in which\t the
\nrights of the parties have still to be determined, there  is
\nno  finality and no appeal lies.  Mr. Gupta has\t brought  to
\nour notice all the cases of the Judicial Committee and\tthis
\nCourt in which this test has been applied.\n<\/p>\n
The  submissions  of Mr. Gupta would have  had\tconsiderable
\nforce  if we were considering the exercise of  appellate  or
\nrevisional jurisdictions of the High Court and the whole  of
\nthe controversy had not been decided by the High Court.\t  An
\nappeal and a revision is a continuation of the original suit
\nor proceeding and the
\n20 6
\nfinality  must therefore attach to the whole of\t the  matter
\nand the matter should not be a live one after the,  decision
\nof  the High Court if it is to be regarded as final for\t the
\npurpose of appeal under Art. 133.\n<\/p>\n
We  are\t concerned here with the exercise  of  extraordinary
\noriginal  civil\t jurisdiction under Art.  226.\t Under\tthat
\njurisdiction,  the  High Court does not hear  an  appeal  or
\nrevision.  The High Court is moved to intervene and to bring
\nbefore\titself, the record of a case decided by\t or  pending
\nbefore a court or tribunal or any authority within the\tHigh
\nCourt’s jurisdiction.  A petition to the High Court invoking
\nthis  jurisdiction is a proceeding quite independent of\t the
\noriginal controversy.  The controversy in the High Court, in
\nproceedings  arising under Art. 226 ordinarily is whether  a
\ndecision  of or a proceeding before, a court or tribunal  or
\nauthority, should be allowed to stand or should be  quashed,
\nfor  want  of jurisdiction or on account of  errors  of\t law
\napparent  on  the  face of the record.\tA  decision  in\t the
\nexercise of this jurisdiction, whether interfering with\t the
\nproceeding  impugned  or  declining to do  so,\tis  a  final
\ndecision in so far as the High Court is concerned because it
\nterminates finally the special proceeding before it.  But it
\nis  not\t to be taken that any order will be a  final  order.
\nThere are orders and orders.  The question will always arise
\nwhat  has the High Court decided and what is the  effect  of
\nthe  order.   If, for example, the High\t Court\tdeclines  to
\ninterfere  because all the remedies open under the  law\t are
\nnot  exhausted, the order of the High Court may not  possess
\nthat finality which the article contemplates.  But the order
\nwould  be  final  if  the  jurisdiction\t of  a\ttribunal  is
\nquestioned and the High Court either upholds it or does not,
\nIn either case the controversy in the High Court is  finally
\ndecided.  To judge whether the order is final in that  sense
\nit  is\tnot always necessary to correlate  the\tdecision  in
\nevery  case with the facts in controversy  especially  where
\nthe  question  is  one\tof  jurisdiction  of  the  court  or
\ntribunal.   The answer to the question whether the order  is
\nfinal  or not will not depend on whether the controversy  is
\nfinally\t over but whether the controversy raised before\t the
\nHigh Court is finally over or not.  If it is, the order will
\nbe  appealable provided the other conditions are  satisfied,
\notherwise not.\n<\/p>\n
In  the\t present case the question raised  was\twhether\t the
\nCommissioner had jurisdiction to set aside the discharge  of
\nthe  debt ordered by the Claims Officer.  This\tjurisdiction
\nwas challenged by the proceedings under Art. 226.  The\tHigh
\nCourt sum-\n<\/p>\n
\t\t\t    207<\/span><\/p>\n
marily\tdismissed the petition.\t In other words,  it  upheld
\nthe  jurisdiction  and\tin the\tcircumstances  it  makes  no
\ndifference  whether  the High Court  pronounced\t a  speaking
\norder  or not.\tBy its decision the High Court\thas  finally
\ndecided the question of jurisdiction.  It is obvious that if
\nthe  High  Court  had  decided to hold\tthat  there  was  no
\njurisdiction,  the  debt would have stood  discharged.\t The
\norder  once  again revived the debt.  Now the order  of\t the
\nCommissioner was challenged on the ground of jurisdiction in
\na  separate proceeding.\t The High Court decided\t to  dismiss
\nthe petition and the order that was passed must be  regarded
\nas  final for the purpose of appeal to this Court.   As\t the
\nother  requirements of the article were satisfied  the\tHigh
\nCourt was in error in refusing the certificate in this case.
\nThe  appeal must, therefore, succeed.  The order dated\tFeb-
\nruary 1, 1965 is set aside and the case will now go back  to
\nthe  High  Court for disposal according to law.\t  The  first
\nrespondent shall bear the costs of the appellant.
\nCivil Miscellaneous Petition No. 2180 of 1965 was not press-
\ned and is dismissed.  There will be no order as to costs  in
\nthis petition.\n<\/p>\n
Appeal allowed.\n<\/p>\n
208<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ramesh And Another vs Seth Gendalal Motilal Patni And … on 6 January, 1966 Equivalent citations: 1966 AIR 1445, 1966 SCR (3) 198 Author: Hidayatullah Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Ramaswami, V., Satyanarayanaraju, P. PETITIONER: RAMESH AND ANOTHER Vs. RESPONDENT: SETH GENDALAL MOTILAL PATNI AND OTHERS DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-1923","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRamesh And Another vs Seth Gendalal Motilal Patni And ... on 6 January, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramesh-and-another-vs-seth-gendalal-motilal-patni-and-on-6-january-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramesh And Another vs Seth Gendalal Motilal Patni And ... on 6 January, 1966 - 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