PRINTERS MYSORE PRIVATE LTD Vs. POTHAN JOSEPH

JUDGEMENT

(1.) THE petitioner who was the appellant in Miscellaneous Appeal No. 68 of 1959 prays for a certificate under Article 133(1)(c) of the Constitution. THE respondent resists the same on two grounds; (i) that the order in appeal (M. A. No. 68/59) is not a judgment, decree or final order' as contemplated in Sub-clause (c) of Clause (1) of Article 133; and (ii) that the case is not a fit one for issuing the certificate prayed for. As we are in agreement with the respondent that the impugned order is not a "judgment, decree or final order" as contemplated in Article 133, we find it unnecessary to consider whether the case is one where the certificate prayed for should be granted.

(2.) ACCORDING to Sri M. K. Nambiar, the learned Counsel for the petitioner the order in question is a "final order" or at any rate it comes within the scope of the word "judgment". The expression "final order" found in Article 133 is not a new expression. The same words were found in Section 109 of the Civil Procedure Code, 1908. The scope of that expression had been decided by numerous decisions. It has been repeatedly held that "final order" is an order which finally determines the joint under dispute and brings the case to an end. To constitute a "final order" it is not sufficient merely to decide an important or even a vital issue in the case. The decision must not keep the matter alive. ACCORDING to Sri Nambiar, an application under Section 34 of the Arbitration Act is in substance an original proceeding though in form it may appear as an interlocutory application. We do not think that this contention is any more open for consideration in view of the decision of the Privy Council in Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Ratanchand, AIR 1920 PC 86. In that case the Privy Council had to consider the scope of Section 19 of the Indian Arbitration Act, 1898, which is similar to Section 34 of the present Arbitration Act. Viscount Cave, who delivered the opinion of the Privy Council observed: "The question as to what is a final order was considered by the court of appeal in the case at Salaman v. Warner, 1891-1 QB 734 and that decision was followed by the same court in the case of Bozson v. Altricham Urban District Council, 1903-1 KB 547. The effect of those and other judgments is that an order is final if it finally disposes of the rights of the parties. The orders now under appeal do not finally dispose of those rights, but leave them to be determined by the Courts in the ordinary way." That decision has been followed by the Privy Council in subsequent cases. The Federal Court at well as the High Courts in this country have unanimously adopted that view as the correct view of the Law.

(3.) UNDETERRED by a catena of decisions against him, Sri Nambiar attempted to break fresh grounds to show that the order in question comes within the scope of the word "judgment" found in Article 133(1). He was well aware of the fact that several High Courts in India had taken a view contrary to his contention, e.g., AIR 1951 Pat 619; Manoharlal v. Hiralal, AIR 1957 MP 47; Dhana-Lakshmi Animal v. Income-tax Officer, AIR 1958 Mad 151. Vallury Mangaraju v. Vallury Varaba-lamma; AIR 1956 Andhra 47, Kuldip Singh v. Maqbul Kaur. AIR1958 PandH 313 and West Jamuria Coal Co., v. Bholanath Roy, AIR1954 Cal 424 , 58 CWN31 . But he asked for a fresh consideration of the whole matter. We had the advantage or hearing very learned arguments from the counsel appearing on either side. We were taken through the legislative history of Article 133. Under Sub-clauses (a) and (b) of Section 595 C. P. C. of 1882, an appeal lay to the Privy Council from "any final decree", but under Clause (c) of that section, an appeal lay from "any decree" if the High Court certified the case to be a fit one for appeal. The decrees applicable under each of these clauses were separately described and in the case of those appealable under Clause (c), no qualifying word was used. Section 594 of that Code defined the word "decree" as including "judgment and order". Consequently under Clauses (a) and (b) of Section 595 an appeal lay from "any final decree", "final judgment", or "final order" but under Clause (c) an appeal lay against any "decree" even though the same was not final, if the High Court certified the case to be a fit one for appeal. Under Clauses (a) and (b) of Section 109 of the Civil Procedure Code, 1908, an appeal lay from "any decree or final order", while under Clause (c) an appeal lay from "any decree or order" provided the High Court certified the fitness of that case for appeal. But the Constitution made substantial changes in these provisions. At present before a certificate can be granted either under Sub-clauses (a), (b), and (c) of Article 133, it is necessary that the decision in question should be a "judgment, decree or final order". Hence according to Sri Nambiar the Constitution has conferred on the unsuccessful party in the High Court a right to appeal to the Supreme Court if the decision in question is either a "judgment or a decree" or a "final order". According to him, the word 'judgment' is used in the relevant articles of the Constitution in contradiction with terms "decree" or "final order". He urges with some force that if the word "judgment" is synonymous either with the word "decree" or "final order", there was no need to bring in that word. He says as a matter of well accepted construction that no word in the Constitution should be considered as superflous and every word found therein should be given a reasonable meaning. For finding out the true meaning of the word "judgment", he placed reliance on the definition of "judgment" given in Section 2(9) of the Civil Procedure Code, according to which "judgment" means "the statement given by the Judge of the grounds of a decree or order". In this connection he has invited our attention to the adaptations made to Sections 109 and 110 of the Civil Procedure Code to bring those provisions in conformity with Article 132 to 134 of the Constitution. Sri Nambiar contends that the word "judgment" found in Section 109 of the C. P. C. must be read in the light of the definition given in Section 2(9) and if so, read, the impugned order is a "judgment".