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1966 (1) TMI 89

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(1)(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 Leave Petition (Civil) No. 395 of 1965 has been filed out 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 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. 2. On the passing of the Madhya Pradesh Abolition of Proprietary 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 deb .....

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(1) had not been taken. The case was remanded to the Claims Officer for disposal according to law. 5. 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)? 6. This 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 ter .....

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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 Art. 133. Lastly, he submits that a proceeding commenced on an application for a writ is not a civil proceeding at all. 9. Article 133 must cover all civil proceedings because no exception 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 purp .....

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nks, 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 Sections 109 and 110 of the Code of Civil Procedure. In Municipal Officer, Aden v. Abdul Karim I.L.R. 28 Bom. 292. this distinction in fact was made and the provisions of the amended clause(40) of the Letters Patent of the Bombay High Court were called in aid. Mr. Gupta cannot 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 .....

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r final order. 13. 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. 14. 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. 15. 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 a .....

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the High Court is finally over or not. If it is, the order will be appealable provided the other conditions are satisfied, otherwise not. 17. 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 summarily 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. 18. The appe .....

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