TMI Blog1950 (12) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... he Imperial Tobacco Company of India, Ltd. By this agreement, the assessee company contracted to des- patch the goods manufactured by it, on behalf of the Imperial Tobacco Company of India, Ltd. and in the name of that company, to destinations inside Bihar or out of Bihar according to the directions of that company, which on its side, agreed to pay to the assessee company by way of remuneration the full cost of manufacture plus 25 per cent. of such cost. The reference was first heard by my learned brothers, Das and Sarjoo Prosad, JJ. On a difference between them, it was referred to B.P. Sinha, J., who while agreeing with Das, J., and disagreeing with Sarjoo Prosad, J., as to the correct interpretation of the relevant clause of the taxing Act, has on another line of reasoning arrived at the same conclusion as Sarjoo Prosad, J. On the facts, all their Lordships are agreed that the transactions between the two companies amount to sales, and that the sales were completed and the property in the goods had passed to the Imperial Tobacco Company of India, Ltd., before the despatch of the goods. Das, J., considered that the taxing Act, in accordance with the accepted principle of construin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 923 P.C. 148. of special jurisdiction to which the Code of Civil Procedure is not applicable, an opinion with which I respectfully agree. They held, however, that it was covered by Clause 36, Letters Patent (corres- ponding to Clause 28, Letters Patent of this Court) and disposed of the reference accordingly. The attention of their Lordships does not appear to have been drawn to the words "hereby directed" in the opening sentence of Clause 36. With respect, I would observe that the provisions in this clause relate to a difference of opinion arising in the exercise of a function which is directed by the Letters Patent to be performed by the High Court in the exercise of its original or appellate jurisdiction. There is nothing in the Letters Patent providing for the exercise of the jurisdiction in question, it being a jurisdiction that is vested in the High Court by a special statute. These observations apply also to the present case and Clause 28 of the Letters Patent of this Court. Recognition to the view which I have just expressed has been given by an amendment of the Income-tax Act, 1922, which was made in 1926. By this amendment, Section 66A was inserted provid- ing, inter al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stantially the same as the provisions of the taxing Act. There, as here, it was provided that, on the hearing of the reference, the High Court shall "decide" the question raised and shall deliver "judgment" thereon containing the grounds on which the decision is founded, and shall send the Revenue Authority a copy of this "judgment" under the seal of the Court and the signature of the Registrar, and the Revenue Authority shall dispose of the case accordingly. For an appeal to lie under Clause 39 (corresponding to Clause 31, Letters Patent of the Court) it was necessary that the decision of the High Court should be either a "final judgment", or "final decree", or a "final order". Their Lordships first considered whether it was a "final judgment" and answered the question in the negative. They commenced with the definition of "final judgment" given by Lord Selborne in Ex parte Moore(2), that nothing more is neces- sary than a proper litis contestatio and a final adjudication between the parties to it on the merits-a definition applicable to the decision before their Lordships. Apparently, however, they preferred the definition given by Lord Esher, (Lord Lindley and Bowen, L.J., concu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were considering whether the decision was covered by Clause 36, Letters Patent, and that clause speaks of a "final judgment." My view of what their Lordships found is supported by their discus- sion of the provision in Section 51, Income-tax Act, that the High Court shall "decide" and shall "deliver judgment" etc. at the end of which dis- cussion they remark: "It would appear clear to their Lordships that the word 'judgment' is not here used in its strict legal and proper sense. It is not an executive document directing something to be done or not to be done, but is merely the expression of the opinions of the majority of the judges who heard the case, together with a statement of the grounds upon which those opinions are based. It amounts only to a ruling that a certain deduction claimed by a tax payer to be allowed from the sum for which he has been already assessed to income-tax is not permissible." (1) (1890) 25 Q.B.D. 465. If the decision is only an expression of opinion it cannot be a judgment. In the course of considering whether the decision of the High Court was a "final order" their Lordships referred to In re Knight and the Tabernacle Permanent Building Society(1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding" in Article 134 which is not criminal. But Article 132 of the Constitution seems to contemplate that the High Court may exercise jurisdiction in "other proceedings" besides "civil proceedings" and "criminal proceedings," and the special jurisdiction of the High Court under the taxing Act may be one instance of such "other proceedings." In this respect Article 133 would not appear to be as wide as Clause 31, Letters Patent, which provides for appeals in regard to matters "not being of criminal jurisdiction." Our attention has been drawn to the order of Agarwala, C.J., and Nageshwar Prasad, J., dated 9th March, 1949, in granting leave to appeal in F.C.A. No. 71 of 1948. That was a case of an appeal against an order of this Court refusing to call upon the Board of Revenue to state a case under the Bihar Sales Tax Act, 1944. Their Lordships granted leave under Clause 31, Letters Patent, following a decision of a Full Bench of the Lahore High Court, the appeal in which case was dismissed on the merits by the Judicial Committee without deciding the "serious" question whether Clause 29, Letters Patent of the Lahore High Court (corresponding to Clause 31, Letters Patent of this Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary than that there should be a proper litis contestatio and a final adjudication between the parties to it on the merits. His Lordship then referred to Onslow v. Commissioners of Inland Revenue(2), which was a case under the Stamp Act, 1870. After referring to the observa- tions of Cotton, L.J., in Ex parte Chinery(3), with which Bowen and Kay, L.JJ., concurred, his Lordship quoted Lord Esher as saying that a judg- ment is a decision obtained in an action, and every other decision is an order. But the decision which their Lordships of the Judicial Committee gave was thus expressed: "This decision clearly establishes that the decision and an order made by the Court under Section 51 of the Act cannot be held to be a 'final judgment' within the meaning of Clause 39 of the Letters Patent, since there is nothing to show an intention in the year 1865 to use those words in a sense more extended than their legal sense." The words "final judgment" were put in quotation marks. Having decided that the decision was not a final judgment within the meaning of Clause 39 of the Letters Patent, their Lordships went on to consider whether it was a final order within the meaning of that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal juris- diction by the Judges of the said High Court etc." In my opinion, the scope of Article 133 of the Constitution is wider than the scope of Sections 109 and 110 of the Civil Procedure Code and Clause 31 of the Letters Patent; because it must be taken that the Constitutent Assembly which made the Constitution, were aware of the previous state of the law, and advisedly dropped the word 'final' before the word 'judgment'. There is, however, a still further question which arises in this con- nection, and that question is if the judgment of the High Court in a sales tax matter is a judgment in a civil proceeding. [I have underlined (here italicised) the important words]. It has been contended before (1) (1890) 25 Q.B.D. 465. us that the expression "civil proceeding" has been used in Article 133 in contra-distinction to the expression "criminal proceeding" used in Article 134. Our attention has not been drawn to any direct decision on this question. After we had heard arguments in this case, I find that there are certain general observations in a judgment of the Supreme Court which have some bearing on the question. The decision is reported in the September issue of the Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal cases, as is evident from the words 'appeal from any judgment, decree, sentence or order' which occur therein and which obviously cover a wide range of matters; secondly, that the words used in this article are 'in any cause or matter', while those used in Articles 132 to 134 are 'civil, criminal or other pro- ceeding', and thirdly, that while in Articles 132 to 134 reference is made to appeals from the High Courts under this article, an appeal will lie from any Court or tribunal in the territory of India". His Lordship then stated that by authority of Article 136 the Supreme Court can grant special leave in civil cases, in criminal cases, in income- tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. It is worthy of note that income-tax cases are referred to separately from civil cases. The same point has been referred to again in the Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank(1). I must say that the question whether income-tax cases, or for that matter, sales tax cases, are civil proceedings within the meaning of Article 133 of the Constitution, did not specifically arise for decision in Pritam Singh's case( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. Reuben, J., was of the view that the decision of this Court against which the present application is directed was not decision in a "civil proceeding" as contemplated by Article 133 of the Constitution Act. Das, J., was inclined to the same view; but as both of their Lordships entertained doubt about the correctness of the aforesaid order in Federal Court Appeal No. 71 of 1948 granting leave to appeal, they suggested that the matter should be referred for disposal to a larger Bench. Accordingly the matter has been placed before us. Mr. P.R. Das appearing on behalf of the applicant has conceded that the application for leave to appeal in the present case does not fall under Sections 109 and 110 of the Civil Procedure Code, because the decision in question is neither a decree nor a final order coming under any of the said provisions. He also concedes that he has no right of appeal under the Letters Patent of this Court. He, however, contends and very strongly contends that he is entitled to appeal under Article 133 of the Constitution Act, and leave to appeal should, therefore, be granted to him. Article 133 of the Constitution of India provides that "an appeal shall lie to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. It is neces- sary to mention in this context that the Supreme Court has since decided the appeal in which leave had been granted by this Court in Federal Court Appeal No. 71 of 1948. I will have occasion to refer to this case at a later stage, but it may be sufficient to point out that the Supreme Court approv- ed of the decision of this Court in Sri Harihar Gir v. Commissioner of Income-tax(2), which refused to accept the view taken by the Full Bench of the Lahore High Court. Mr.P.R. Das for the applicant, however, argues that it should be held in disagreement with Reuben, J., and in agreement with Das, J., that the decision of this Court from which the appeal is sought to be preferred is a judgment, and it should also be held in disagreement with both the learned Judges that the decision in question did arise out of a civil proceeding. As elaborate arguments have been advanced (1) (1931) 12 Lah. 166. (2) [1941] 9 I.T.R. 246; 20 Pat. 561. at the Bar, I will deal with both these arguments separately. I may, however, say at once that I feel no hesitation in agreeing with my learned brother Reuben, J., as to his decision on both the points canvassed before us. In doing so, I f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods by the assessee was all that was contemplated by the (1) [1923] 50 I.A. 212. relevant clause of the taxing Act, and, therefore, the assessee was entitled to the deduction; whereas my own view was that the sale having been completed in this province before the despatch of the goods, and the title being no longer in the vendor, the exemption clause could not operate to the benefit of the assessee inasmuch as the taxing statute operated on all sales of goods in the Province. In my opinion, the exemption clause applied only with reference to sales of goods which were despatched by the dealer to an address outside the province, and in which the dealer retained a title in the goods be- fore he despatched them. B.P. Sinha, J., held that the clause laid stress on the Commissioner being satisfied as to despatch being by the dealer or otherwise, and the High Court was bound to accept the finding of the Commissioner on the point that the despatch was on behalf of the vendee. Thus the ultimate effect of these decisions was that all the points on which the Board of Revenue had been called upon to state a case under Section 21(3) of the Act were answered against the peti- tioner. It is agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinc- tion between judgments and orders, and that the words 'final judg- ment' have a professional meaning, by which expression I think he meant to say, as Cotton, L.J., had previously said, that a 'judgment' is a decision obtained in an action; and if that was his meaning, both these learned Lords Justices gave judgment to the same effect, and Fry, L.J., agreed with them. A 'judgment', therefore, is a decision obtained in an action, and every other decision is an order ....... That is, in my opinion, a proper distinction ......." Following the above distinction the Privy Council held: "This decision clearly establishes that the decision and an order made by the Court under Section 51 of the Act cannot be held to be a 'final judgment' within the meaning of Clause 39 of the Letters Patent, since there is nothing to show an intention in the year 1865 to use those words in a sense more extended than their legal sense." I may observe in the context that Clause 39 of the Letters Patent under consideration by the Privy Council corresponds to Clause 31 of the Letters Patent of this Court. Their Lordships further pointed out the danger of confusing the meaning of the expression "judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference from the Revenue Authorities. This is what was done in the present case; but this factor to my mind does not improve the position and does not lend any additional finality to the judgment which the High Court comes to pronounce on the hearing of the reference. Whether the Revenue Authorities state a case to the High Court on certain points of law arising out of their judgment or the High Court calls upon them to state a case on such points of law, in either event the High Court after the hearing of the case shall "deliver its judgment" and "shall sent to the Board of Revenue a copy of such judgment" and "the Board shall dispose of the case accordingly." The position was exactly the same under Section 51 of the Income-tax Act, 1918, which came in for consideration by the Privy Council. If, therefore, the High Court was then held to be acting in advisory capacity in delivering its judg- ment, the capacity of the High Court is not altered when acting under (1) (1923) 50 I.A. 212. Section 21(5) of the Bihar Sales Tax Act, 1944. That the aforesaid change in the law has not affected the function of the High Court in delivering its 'judgment' on such references is clear from ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1923) 50 I.A. 212. "This last provision merely means that the Revenue Officer, in proceeding with the work in the course of which he was engaged when the question referred arose, shall be guided by the decision given, and shall make his assessment accordingly-the ultimate result being that he assesses the taxpayer at an amount which in his instructed opinion he judges to be right ....... The decision of the High Court does not in any way enforce the discharge of that liability. It would appear clear to their Lordships that the word 'judgment' is not here used in its strict legal and proper sense." At another place with reference to such a judgment the Judicial Committee says: "It amounts only to a ruling that a certain deduction claimed by a taxpayer to be allowed from the sum for which he has been already assessed to income-tax is not permissible" and then the judgment finally concludes with these pertinent observations: "It would appear to their Lordships that, having regard to the authorities cited, and for the reasons already stated, the decision, judg- ment or order made by the Court under Section 51 of the Income-tax Act in this case, was merely advisory, and not in the prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its "judgment' thereon containing the grounds on which such decision is founded; and the Court shall then send a copy of such judgment to the Revenue Authority by which the case was stated, and the said authority shall dispose of the case conformably to such a 'judgment'. Here also although the word 'judgment' has been used, I do not know of any case where a party has been held entitled to prefer an appeal to the Privy Council against a judgment of this character. Nor, in my opinion, such an appeal could be entertainable, the Stamp Act itself not having provided for such a contingency, because a judgment of such a nature is not a "judgment" in the real sense of the term although it has its finality in respect of the points which are stated to the Court for its decision. The learned Government Pleader has further drawn our attention to the fact that Articles 132 and 133 of the Constitution Act are very much on the same lines as Sections 205 and 206 of the Government of India Act, 1935. In Sections 205 and 206 of the Government of India Act the expression "judgment, decree or final order" also occurs, and the decisions bearing on the interpretation of these sections of the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p observes: "These and other English decisions make it clear that in England when the word judgment or decree is used, whether it is preliminary or final, it means the declaration or final determination of the rights of the parties in the matter brought before the Court". His Lordship further observes: "In our opinion, the decisions of the Courts in India show that the word 'judgment', as in England means the determination of the rights of the parties in the matter brought before the Court". An argument was advanced before their Lordships, as it has been advanced before us, that clause 39 of the Letters Patent of the High Courts of Calcutta, Bombay and Madras provided for appeals to His Majesty in Council from "any final judgment, decree or order ", and it was urged that in the absence of the qualifying word, "judgment" in (1) (1923) 50 I.A. 212. (3) (1890) 25 Q.B.D. 465. (2) [1947] F.C.R. 180; A.I.R. 1949 F.C. 1. Section 205(1) of the Constitution Act, it must be held to include a pre- liminary or interlocutory judgment, and that the order now under appeal fell under that category. His Lordship disposed of the argument thus: "We are unable to accede to this view. In our opinion, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed: (1) [1949] F.C.R. 842. (2) [1947] F.C.R. 180; A.I.R. 1949 F.C. 1. "The fact that the order decides an important and even a vital issue is by itself not material. If the decision on issue puts an end to the suit, the order will undoubtedly be a final one, but if the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order." I should observe that the effect of the High Court order which was appealed against in that case was to keep the application for winding up on the file to be taken up for hearing after the final determination of certain income-tax and excess profits tax cases which were then pending. It was lastly contended before their Lordships that although the order in question may not have the effect of a final order "it could still be regarded as a judgment", and as such coming within the purview of Section 205 of the Government of India Act. This argument also did not find favour with their Lordships and they disposed of the same in the following words: "In English Courts the word 'judgment' is used in the same sense as a 'decree' in the Civil Procedure Code and it means declara- tion or final determination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Letters Patent is in consonance with the opinion that has been expressed by the Judicial Committee of the Privy Council on no less than three occasions; and, I apprehend, it is not open to the Courts in India to construe the term 'judgment' as used in the Letters Patent in any other sense". His Lordship then referred to the observations of Sir John Edge in Sevak Jeranchod Bhogilal v. The Dakore Temple Committee(2), and the observations of Lord Atkinson in Tata Iron and Steel Company(3), which I have already discussed above. He also referred to another decision of the Judicial Committee in Savitri Thakurain v. Savi(4), and then summed up in these words: "It appears, therefore, that the Judicial Committee in three cases have expressly and plainly laid down that the term 'judgment' in the Letters Patent of the High Court means 'decree' and not 'order', in the strict legal sense in which those terms are understood and defined". Page, C.J., has very rightly conceded that the construction which in the opinion of the Full Bench was placed upon the term "judgment" in the Letters Patent had not found favour in other High Courts in India. But at the same time, in my opinion, his L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection as to competency of the appeal which it characterised to be a serious objection. At the commen- cement of the hearing of the appeal before the Supreme Court, a prelimin- ary objection was raised that the appeal was not competent and their Lordships upheld with approval to a Special Bench decision of this Court in Harihar Gir v. Commissioner of Income-tax(3), where it was held on an exhaustive review of various authorities that "no appeal lay to His Majesty in Council under Clause 31 of the Letters Patent of the Patna High Court from an order of the High Court dismissing an applica- tion under Section 66(3) of the Income-tax Act (a provision similar to Section 21 of the Act before us) to direct the Commissioner of Income-tax to state a case". Their Lordships then proceeded to construe Section 21 of the Bihar Sales Tax Act and held as follows: (1) [1951] 19 I.T.R. 108; 1 S.T.C. 313. (3) [1941] 9 I.T.R. 246. (2) [1931] 12 Lah. 166. "All that the High Court is required to do under Section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 I.A. 212. (3) [1891] 1 Q.B. 725. (2) [1892] 2 Q.B. 613 at p. 617. (4) [1949] 17 I.T.R. 353. means and includes all proceedings except those that are criminal does not appear to have found favour with their Lordships. Indeed, as Reuben, J., observed, Article 132 itself contemplates that the High Court may exercise jurisdiction in "other proceedings" besides "civil proceedings" and "criminal proceedings" and the special jurisdiction of the High Court under the taxing Act may be one instance of such "other proceedings." Therefore, it follows that "civil proceedings" can- not be held to include all proceedings save "criminal proceedings". The learned Government Pleader has contended that proceedings under the taxing statutes stand entirely on a different footing inasmuch as the ruling authority in such cases proceeds to levy taxes in exercise of its sovereign rights. The proceeding, therefore, under the taxing statute cannot be regarded as a "civil proceeding. " He relies upon a decision of the Judicial Committee of the Privy Council in Raleigh Investment Co., Ltd. v. Governor-General in Council(1), where it was pointed out that a jurisdiction to question the assessment of income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse; and it is impossible for me now to attach any different meaning to the term "judgment", as used in Article 133 of the Constitution Act, than what has been attributed to it consistently by the various authoritative pronouncements which I have discussed above. For these reasons, I hold that the petitioner has no right of appeal to the Supreme Court, and, therefore, leave to appeal cannot be granted. The application fails and must be dismissed with costs, hearing fee five gold mohurs. RAI, J.-I entirely agree with the Honourable Sarjoo Prosad, J. I have nothing more to add. SHEARER, J.-The marginal note to Article 133 of the Constitu- tion is "appellate jurisdiction of Supreme Court in appeals from High Court in regard to civil matters." This is very similar to the marginal note to Article 73 of the Australian Constitution Act, 1900, which is "appellate jurisdiction of High Court". Whereas, however, the opening words of Article 73 of the Australian Constitution Act, 1900, are "The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences," ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t again in 1900 in enacting Section 73 of the Commonwealth of Australia Act and still again in 1935 in enact- ing Sections 205 and 206 of the Government of India Act except that in the latter Act the word "sentence" was for obvious reasons omitted. There is no doubt, I think, that the words used in the statute of 1844 were used advisedly to embrace every kind of decision. There may in the British Empire, as it existed in 1844, have been colonies in which, the original settlers having carried the Common Law with them, the decisions of the Courts were embodied in formal judgments based on the writs with which the action was commenced or in the formal decrees in use in the Court of Chancery in England, but in India and in other colonies or dependencies this was certainly not so. That appears to me to be a strong reason for supposing that the word "judgment" was not used in Section 205 of the Government of India Act, 1935, on which Article 133 (1) of the Constitution is based, in any narrow or technical or, as it has been called professional sense. In construing the words "any judgment, decree or final order," which appear in both of them, there are in my opinion two assumptions which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dominion Legislature forthwith to abolish any right of appeal to the Judicial Committee, it is perfectly clear that the British Parliament and also the Government of India considered that the expression "judgment, decree or final order" was wide enough to cover decisions of the High Court on references under Section 66A of the Income-tax Act, and, if it is wide enough to cover such decisions, it must also cover decisions under Section 21(5) of the Bihar Sales Tax Act, 1944. In the course of the argument a large number of decisions were cited, but, as the question is one of first impression, these decisions are of no assistance, and it is, I consider, unnecessary to refer to them. Indeed, while decisions as to the construction to be put on Section 205 of the Government of India Act, 1935, may be in point, any other decisions cited were not strictly relevant, and to place any reliance on them would be to be in danger of falling into the cardinal error of attempting to construe one document by reference to the manner in which another and possibly similar, but nevertheless, different document has been judicially interpreted. I ought, however, to refer to the decision of their Lordsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enquiry had to be made as to damages was a final judgment or merely a preliminary or an interlocutory judgment. It was held that the latter was a final judgment, whereas the former was not and Bowen, L.J., observed in the earlier case that the provisions in the Bankruptcy Act defining acts of bankruptcy should be construed as strictly as if they had occurred in a section which was defining a misdemeanour, because the commission of an act of bankruptcy entailed a disability on the person who commits it. Lord Atkinson, in following these decisions and pointing out that, technically in English law, a judgment was the decision obtained in an action and that any other decision was an order, did not explain why he considered it necessary to construe the language used in the Letters Patent with the same strictness as Bowen, L.J., had in a somewhat different case, thought desirable. The reason, however is, I venture to think, reasonably clear on general principle. In Sandback Charity Trustees v. North Staffordshire Railway Co.(3), Bramwell, L.J., observed: "An appeal does not exist in the nature of things, a right to appeal from any decision of any tribunal must be given by express enactme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment that no general right of appeal, such as was conferred by the Judicature Act, 1873, existed strongly suggests that some such considerations weighed with him. Incidentally, it may be observed that the language used in the Judicature Act, 1873, is not dissimilar to that used in Section 205 of the Government of India Act, 1935. In construing any Constitution Act, the Courts are bound to give it a broad and liberal interpretation. For that reason, the words "judgment", "decree" and "order" in Article 133(1) are not to be construed distributively. Regard must be had to the cumulative effect of them, and the phrase "any judgment, decree or final order" made in a civil proceeding must be regarded as a single compendious phrase, embracing every decision in a civil proceeding which is not a final but is merely a preliminary or an interlocutory order. It is in this manner that the very similar language used in Section 73 of the Commonwealth of Australia Act, 1900, appears to have been construed by the Courts in Australia: (See Quick and Garran on the Constitution of the Australian Common- wealth, p. 741). Apparently, in the Australian Courts, while the meaning of the individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as that these decisions support his argument, I am also unable to take the view that they can be relied on by the learned Government Pleader as completely decisive. The Constitution, it appears to me, proceeds on the assumption that proceedings are either civil proceedings or criminal proceedings. In England proceedings arising out of references made under fiscal statutes are governed by a special procedure and are heard by the King's Bench Division on the revenue side. Nevertheless, they are, I believe, regarded as civil proceedings. I am unable to regard the (1) [1890] 25 Q.B.D. 465. (3) [1947] F.C.R.180. (2) [1949] F.C.R. 842. observation of Fazl Ali, J., in Pritam Singh v. The State(1), that the Supreme Court can, by virtue of Article 136, grant "special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases" as an authority for the proposition that a proceeding on a reference made under the Indian Income-tax Act or under the Bihar Sales Tax Act, 1944, is not a civil proceeding. His Lordship was there merely explaining the scope of the power conferred on the Supreme Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, an instrument containing a delegation of power by His Majesty in Council to the High Courts in India, and in construing such an instrument, it is not merely reasonable but essential that a strict interpretation should be put on the expression "final judgment made in exercise of original jurisdiction", which expression, taken as a whole, does not, in any case, readily import more than a decision in an action. The Constitution of a great people is not to be interpreted in precisely the same manner as a power of attorney which can be cancelled or modified at will. More particularly is that so when the provision in it which is under examination, confers a right on every citizen. Article 133 confers a right of appeal to the highest tribunal in the land. A right of that kind must, in the nature of things, be a restricted right. The first part of the article imposes one restriction, namely, that the decision from which an appeal is sought to be brought is not a preliminary or an interlocutory order which is what the Federal Court held in the two cases already cited and the second part of the article imposes another restriction namely, as to the value of the subject-matter and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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