RVISWANATHAN Vs. RUKNUL MULK SABDUL WAJID

JUDGEMENT

(1.) This petition under Order 47 Rule 1 of the Code of Civil Procedure is for review of an order passed by us in Civil Petition Number 453 of 1958 refusing to issue a certificate to appeal to the Supreme Court of India as against the order passed by us in Writ Petition Number 287 of 1958.

(2.) The facts leading up to the filing of this petition, in so far as they are relevant for the determination of the points raised in this case briefly stated are as follows:--The petitioners filed a petition under Article 226 of the Constitution of India for the issue of a Writ of Certiorari quashing the judgments and decrees in Regular Appeals Numbers 104 and 109 of 1947-48 passed by a Full bench of the former High Court of Mysore reversing the judgments and decrees of the District Judge, Civil Station, Bangalore, in Original Suit Number 61(A) of 1947. They stated that the judgments and decrees in those appeals were null and void and inoperative on the ground of there being coram non-judice for various reasons including the legal incompetence of the Judges that composed the Full bench to hear the appeal. When the Writ petition came up for admission before us we declined to exercise our jurisdiction under Article 226 of the Constitution on the ground that the Pre-Constitution High Court of Mysore was not a Court inferior or subordinate to this Court for the purpose of issue of a Writ of Certiorari and also on the ground that this Court had no jurisdiction to re-open the decisions that had become final before the Constitution came into force. This order was passed by us on 29th August 1958. The petitioners filed Civil Petition Number 453 of 1958 under Article 133(1)(b) and (c) and Article 132 of the Constitution for the issue of a certificate to appeal to the Supreme Court of India against the said decision. We refused to grant such a certificate. We rejected the application filed by the petitioners by an order passed by us on 16th of April 1959 without notice to the respondents. In the course of our order we stated that the case was not a fit one to issue a certificate of fitness under Article 133(1)(b) and (c) of the Constitution of India. The petitioners then presented this present petition for review of the order passed in Civil Petition Number 453 of 1958 on the allegation that we had overlooked to consider the scope of Art. 133(1)(b) of the Constitution and that the order passed by us indicated that we had dealt with the case as though it was an application for a certificate of fitness only under Article 133(1)(c) of the Constitution. We heard the learned counsel for the petitioners on 3rd of July 1959 on all the questions raised in the review petition. We found that there were no good grounds either to certify under Article 132(1) or to reconsider our order already passed in respect of Article 133(1)(c) of the Constitution. However, we felt that inregard to the question of certifying under Art. 133(1)(b) of the Constitution it was necessary to consider the matter further and we, therefore, admitted the review petition for the above said limited purpose and ordered notices to be issued to the respondents. In response to the said notices, respondents 1, 2 and 3 appeared before us and have opposed the petition on various grounds.

(3.) Mr. T. Krishna Rao, the learned counsel for the opposing respondents contended before us that since the order dismissing the Writ petition filed by the petitioners was passed by us without going into the merits, the petitioners are not entitled to ask for certificate under any of the provisions of Article 132 of the Constitution. He raised three objections and they are: (1) that the order passed by us in refusing to exercise our jurisdiction under Art. 226 of the Constitution and declining to issue a Writ of Certiorari as prayed for the petitioners is not a civil proceeding, (2) that the said order passed by us is not a judgment, decree or final order within the meaning of Art. 133(1) of the Constitution and (3) that the said order did not involve any claim or question respecting property of the value of Rs. 20,000/- and above.