TMI Blog1962 (3) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... hus we are not justified to allow the appellants to convert their petition to one made under Order XLVII of the Code of Civil Procedure at this very late stage in view of the foregoing reasons. Appeal dismissed. - Civil Appeal No. 25 of 1961 - - - Dated:- 26-3-1962 - Judge(s) : T. L. VENKATARAMA AYYAR, B. P. SINHA., K. SUBBA RAO., N. RAJAGOPALA AYYANGAR., J. R. MUDHOLKAR JUDGMENT The judgment of the court was delivered by SUBBA RAO J.----This appeal by special leave is directed against the judgment and order of a division bench of the Allahabad High Court confirming those of a single judge of that court dismissing. the application filed by the appellants to review the order of the High Court dated November 22, 1958. The facts leading up to the filing of this appeal may be briefly stated. The respondent held certain zamindari and agricultural properties in different districts of the State of Uttar Pradesh. On December 22, 1952, the Additional Collector, Banaras, in exercise of the powers conferred on him under the provisions of the U.P. Agricultural Income-tax Act (III of 1949), assessed the respondent to an agricultural income-tax of Rs. 99,964-12-0 for the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le judge of the court can be maintained only if that order amounts to a " judgment ", and an order refusing an application for review not being a " judgment " cannot be the subject of an appeal, (2) on merits, that is on the construction of section 11 of the Act, the view taken by Mehrotra J. was correct. The present appeal, as already stated, was preferred against the said order. Mr. C. B. Aggarwala, learned counsel for the appellants, has raised before us the following points : (1) The order of Mehrotra J. dismissing the application for review of his earlier order is a " judgment " within the meaning of Chapter VIII, rule 5 of the Rules of Court and, therefore, an appeal lies against that order to a division bench of that court. (2) The terms of section 11 of the Act are comprehensive enough to take in an order made by the High Court under article 226 of the Constitution quashing the order of assessment, and even if there is some lacuna, the provisions shall be so construed as to carry out the clear intention of the legislature. (3) In any view, the application for review filed by the appellants could be treated as one filed under Order XLVII of the Code of Civil Procedure, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have a decree passed against them in their absence." The Bombay High Court followed the Calcutta view. The leading judgment of the Madras High Court is that in Tuljaram Row v. Alagappa Chettiar, where it was held that an order of a single judge in the original side refusing to frame an issue asked for by one of the parties is not a " judgment " within the meaning of clause 15 of the Letters Patent. White C.J. laid down the following tests : " The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a ' judgment ', within the meaning of the clause." Referring to the decisions of the Calcutta High Court the learned Chief justice proceeded to state : " On the other hand I am not prepared to say as was held in Justices of the Peace for Calcutta v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult inevitably without anything further, save the determination of consequential details, in a decree or decretal order, that is to say, an executive document directing something to be done or not to be done in relation to the facts of the controversy. The decision may itself order that thing to be done or not to be done or it may leave that over till after the ascertainment of some details but it must not be interlocutory having for its purpose the ascertainment of some matters or details prior to the determination of the whole or any part of the controversy." The foregoing brief analysis of the judgments shows that the definition given by the Madras High Court is wider than that given by the Calcutta and Nagpur High Courts. It is not necessary in this case to attempt to reconcile the said decisions or to give a definition of our own, for on the facts of the present case the order of Mehrotra J. would be a judgment within the meaning of the narrower definition of that expression. The appellants filed an application to review the order of the High Court quashing the order of assessment made by the Additional Collector. It was alleged in the affidavit that the impugned asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty days from the date of commencement of this Act apply to the court or authority for a review of the proceedings in the light of the provisions of this Act, and the court or authority to which the application is made shall review the proceedings accordingly and make such order, if any, varying or revising the order previously made, as may be necessary to give effect to the provisions of the principal Act as amended by sections 2 and 8 of this Act. " Under the aforesaid provisions the assessments made by the Additional Collector were retrospectively validated and a right was conferred on a party to the proceedings under the principal Act, wherein the assessments were set aside merely on the ground that the assessing authority had no jurisdiction to make an assessment, to apply to the court to have that order reviewed. A statutory injunction was also issued to the court which set aside the assessment on the ground of want of jurisdiction to review its order and to give effect to the provisions of the principal Act, as amended by sections 2 and 4 of the Act, that is to say, a fresh right has been conferred upon a party to the earlier proceedings to have the previous order set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding under the Act : it is a proceeding under the Constitution. But it is said, relying upon certain passages in Maxwell on the Interpretation of Statutes, at page 68, and in Crawford on Statutory Construction at page 492, that it is the duty of the judge " to make such construction of a statute as shall suppress the mischief and advance the remedy ", and for that purpose the more extended meaning could be attributed to the words so as to bring all matters fairly within the scope of such a statute even though outside the letter, if within its spirit or reason. But both Maxwell and Crawford administered a caution in resorting to such a construction. Maxwell says at page 68 of his book : " The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words." Crawford says that a liberal construction does not justify an extension of the statute's scope beyond the contemplation of the legislature. The fundamental and elementary rule of construction is that the words and phrases used by the legislature shall be given their ordinary meaning and shall be construed according to the rules of grammar. When a language is plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts similar to those issued by the King's Bench Division, subject to the same limitations imposed on the said writs. In Venkataratnam v. Secretary of State for India, a division bench of the Madras High Court consisting of Venkatasubba Rao and Madhavan Nair JJ. held that the jurisdiction to issue a writ of certiorari was original jurisdiction. In Ryots of Garabandha v. Zamindar of Parlakimidi, another division bench of the same High Court, consisting of Leach C.J. and Madhavan Nair J., considered the question again incidentally and came to the same conclusion and held that a writ of certiorari is issued only in exercise of the original jurisdiction of the High Court. In Ramayya v. State of Madras, a division bench, consisting of Govinda Menon and Ramaswami Gounder JJ. considered the question whether the proceedings under article 226 of the Constitution are in exercise of the original jurisdiction or revisional jurisdiction of the High Court ; and the learned judges held that the power to issue writs under article 226 of the Constitution is original and the jurisdiction exercised is original jurisdiction. In Hamid Hasan Nomani v. Banwarilal Roy, the Privy Council was considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution, the statutory mandatory injunction issued under the second part of the section to the High Court to make an order in a particular way would be constitutionally void. Under the Constitution, the legislature of a State derives its authority to make laws under article 245 of the Constitution, which reads : " (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. " Article 245 is, therefore, subject to article 226 of the Constitution. It follows that no law made by the legislature of a State can be in derogation of the powers of the High Court under article 226 of the Constitution. It is well settled that article 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose. While article 226 confers a discretionary power on the High Court, the second part of section 11 of the Act enjoins on the High Court to make an order in a particular way. We should not give such a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt under article 226 of the Constitution. Lastly, it is contended that even if section 11 does not apply, we should treat the application filed by the appellants before the High Court as one made under Order XLVII of the Code of Civil Procedure. There are many objections for allowing the appellants to do so at this very late stage of the proceedings. The application was filed only under section 11 of the Act and no attempt was made either before Mehrotra J. or before the division bench of the High Court to ask for an amendment or to sustain the petition under Order XLVII of the Code of Civil Procedure ; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them. After the case was argued for sometime on an observation casually made by the court, time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants. This is, therefore, a highly belated attempt to convert the application filed on one basis into that on another. Further, the plea, if allowed, is not so innocuous or smooth-sailing as it appears to be, but is brimming with many controvers ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
