Full Judgment Text
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PETITIONER:
TARAPORE & CO.
Vs.
RESPONDENT:
M/S. V/O TRACTORS EXPORT, MOSCOW & ANR.
DATE OF JUDGMENT:
15/11/1968
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
MITTER, G.K.
HEGDE, K.S.
GROVER, A.N.
CITATION:
1970 AIR 1168 1969 SCR (2) 699
1969 SCC (1) 233
CITATOR INFO :
R 1971 SC2337 (6)
R 1972 SC1598 (12)
ACT:
Constitution of India, Art. 133--Interim injunction
granted In suit whether a ’final order’ for purpose of
Article.
HEADNOTE:
M/s Tarapore & Co. who were plaintiffs in a suit
applied for an interim injunction restraining the first
defendant in the suit from taking any steps in pursuance of
a letter of credit opened in favour of the second defendant.
A single judge of the High Court granted an interim
injunction restraining encashment of the letters of credit
pending disposal of the suit. In appeals under the Letters
Patent preferred by the second dependent, the High Court of
Madras set aside that order. Against the orders passed in
the two appeals, the plaintiffs applied for certificate
under Arts. 133(1) (a) and 133(1)(b) of the Constitution.
The High Court observed that an order granting interim
injunction "is a final order, as far as this Court is
concerned, determining the rights of parties within this his
or proceeding, which is independent though ancillary to the
suit", and they were competent to grant certificate. In this
Court the defendants applied for revocation of the
certificate.
HELD: The certificate must be revoked.
An order passed by the, High Court in appeal which does not
finally dispose of a suit or proceeding and leaves the
rights and obligations of the parties for determination in
the suit or proceeding from which the appeal has arisen, is
not final within the meaning of Art. 133(1)(a) and (h). The
order refusing to grant an interim injunction did not
determine the rights and obligations of the parties in
relation to the matter in dispute in the suit. It
could not be held that because the plaintiffs suit
as a result of the order of the High Court may become
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infructuous as framed and the plaintiff may have to amend
his plaint to obtain effective relief an order which is
essentially an interlocutory order may be deemed final for
the purpose of Art. 133(1) of the Constitution. [704 H]
Mohanlal Maganlal Thakkar’s case makes no departure from the
earlier judgments of the judicial Committee, the Federal
Court and this Court.
Ramchand Manjimal v. Goverdhandas Vishindas Ratanchand,
L.R. 47 I.A. 124; Salaman v. Warner, [1891] 1 Q.B. 734;
Bazson v. Altrincham Urban District Council, [1903] 1 K.B.
547; Isaacs v. Selbstein, [1916] 2 K.B. 139, Abdul
Rahrnan v.D.K. Cassim & Sons, L.R. 60 I.A. 76; S. Kuppusami
Rao v. The King, [1947] F.C.R. 180; Mohammad Amin Brothers
Ltd, and Others v. Dominion of India and Others, [1949-50]
F.C.R. 842; Sardar Syedna Taher Saifuddin Saheb v. The
State of Bombay, [1958] S.C.R. 1007; Srinivasa Prasad Singh
v. Kesho Prasad Singh 13 C.L.J. 681 and Druva Coal Company
v. Benaras Bank, 21 Cal. L.J. 281, referred to.
Mohanlal Maganlal Thakkar v. State of Gujarat. A.I.R.
1968 S.C. 733, explained.
700
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Misc. Petitions Nos.
401/and 4012 of 1968.
Applications by respondent no. 1 for revocation of the
certificate granted by the Madras High Court on 15th
October, 1968 under Art. 133(1)(a) & (b) of the Constitution
of India.
AND
Civil Appeals Nos. 2183 and 2184 of 1968.
Appeals from the judgment and order elated October 9,
1968 of the Madras High Court in O.S.A. No. 25 and 27 of
1968.
M.C. Setalvad. V.P. Raman, D.N. Mishra, and J.B.
Dadachanji, for the appellant.
S. Mohan Kumaramangalam. M.K. Ramamurthi, Shyamala Pappu
and Vineet Kumar, for respondent No. 1.
Rameshwar Nath and Mahinder Narain, for respondent No. 2.
The Judgment of the Court was delivered by
Shah, J. M/s. Tarapore & Company--hereinafter called the
plaintiffs--applied in Suit No. 118 of 1967 for an interim
injunction restraining the Bank of India Ltd.--the first
defendant in the suit from taking any steps in pursuance
of a letter of credit opened in favour of M/s. V/O Tractors
Export, Moscow, the second defendant. Ramamurthi, J., by
order dated April 12, 1968, granted an interim injunction
restraining encashment of the letters of credit pending
disposal of the suit. In appeals under the Letters Patent
preferred by the second defendant,. the High Court of Madras
set aside that order. Against the orders passed in the two
appeals, the plaintiffs applied for certificate under
Arts.133(1)(a) and 133(1)(b) of the Constitution. The High
Court observed that an order granting interim injunction
"is a final order, as far as this Court is concerned,
determining the rights of parties within this lit or
proceeding, which is independent though ancillary to the
suit", and they were competent to grant the certificate.
By our order dated October 28, 1968, we ordered that the
certificate granted by the High Court do stand revoked. We
set out the reasons in support of that order. Article 133
(1) provides, insofar as it is material:
"(1) An appeal shall lie to the Supreme Court
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from any judgment, decree or final order in a
civil proceeding of a High Court in the
territory of India if the High Court
certifies-
(a) that the amount or value of the
subject matter of the dispute in the court of
first instance and still in dispute on appeal
was and is not less than twenty thou-sand
rupees or such other sum as may be specified
in that behalf by Parliament by law; or
701
(b) that the judgment, decree or final
order involves directly or indirectly some
claim or question respecting property of the
like amount or value; or
"(c) ........ where the. judgment,
decree or final order appealed from affirms
the decision of the Court immediately below in
any case other than a case referred to in sub-
clause (c), if the High Court further
certifies that the appeal involves some
substantial question of law."
The suit filed by the plaintiffs is a civil proceeding, and
the suit involves some claim or question respecting property
of not less than twenty thousand rupees. That is a matter
not in dispute.
The expression "judgment" in Art. 133 ( 1 ) in the
context in which it occurs means a final adjudication by the
Court of the rights of the parties, ’and that an
interlocutory judgment even if it decides an issue or
issues without finally determining the rights and
liabilities of the parties is not a judgment, however
cardinal the issue may be. In the present case not even an
issue has been decided, and it is not contended that the
order of the High Court amounts to a judgment or ’a decree.
The expression "final order" it has been held by a long
course of authorities, occurring in s. 205 of the Government
of India Act, 1935, s. 109 of the Code of Civil Procedure
and Art. 133(1) of the Constitution means a final decision
on the rights of the parties in dispute in a suit or
proceeding; if the rights of the parties in dispute in the
suit or proceeding remain to be tried, after the order, the
order is not final.
In Ramchand Manjimal v. Goverdhandas Vishindas
RatanChand(1), it was held by the Judicial Committee that an
order of the Judicial Commissioner of Sind vacating an order
of stay granted under s. 19 o,f the Indian Arbitration Act,
1899, and refusing to stay a proceeding was not a final
order within the meaning of s. 109(a) of the Code of Civil
Procedure. Viscount Cave referred to Salaman v. Warner(2);
Bozson Altrincham Urban District Council(a) and Issacs v.
Salbstein(4) and observed:
"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."
In Abdul Rahman v.D.K. Cassim & Sons(5) the Judicial
Committee observed that the expression "final order" within
the meaning of s. 109(a) of the Code of Civil Procedure,
1908, is an
(1) L.R. 47 I.A. 124.
(2) [1891] 1 Q.B. 734.
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(3) [1903] 1 K.B. 547.
(4) [1916] 2 K.B. 139.
(5) L.R. 60 I.A. 76.
Sup. C.I./69--12
702
order which finally disposes of the rights of the parties in
relation to the whole suit. In Abdul Rahman’s case(1) a
suit was instituted by D.K. Cassim and Sons claiming damages
against the appellant Abdul Rahman. Soon after the suit was
instituted the plaintiff firm was adjudicated insolvent and
the official assignee was impleaded as an additional
plaintiff. The official assignee declined to proceed with
the suit, and the suit was dismissed by the trial court. In
appeal it was held by the High Court of Calcutta that the
cause of action was personal to the insolvents and did not
vest in the assignee, and accordingly they set aside the
decree and remanded the suit for trial. Against that order
an appeal was preferred to the Judicial Committee which was
held not maintainable.
In 8. Kuppusami Rao v. The King(2) The Federal Court
held that the expression "final order" in s. 205 (1 ) of the
Government of India Act, 1935, means an order which finally
determines the points in dispute and brings the case to an
end. The test of finality, according to the court, is
whether the order finally disposes of the rights of the
parties, and not whether the order decides an important
point or even a vital issue in the case.
Mukherjea, J., in interpreting the expression
"judgment, decree or final order" in s. 205 of the
Government of India Act, 1935, in Mohammad Amin Brothers
Ltd. and others v. Dominion India and others ( 3 ) observed:
"The expression "final order" has been
used in contradistinction to what is known as
"interlocutory order" ........ If the
decision on an 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."
In Mohammad Amin Brothers’ case(3) an issue was decided by
the trial court in a petition for winding up of a Company as
to the maintainability of a claim for recovery of income-tax
dues. In appeal the High Court overruled the objection
raised by the Company about the maintainability of the
claim, and finding that a bona fide dispute was pending
before the Income-tax authorities relating to a substantial
part of the debt on which the application for winding up was
made and that the solvency of the Company could not be
determined before that dispute was decided, set aside the
order of the Trial Judge and remanded the case to him. The
Federal Court held that the order appealed against was not a
"final order".
In Sardar Syedna Taher Saifuddin Saheb v. The State of
Bombay(4) a suit was filed for a declaration that the order
of ex-
(1) L.R. 60LA. 76
(2) [1947] F.C.R. 180.
(3) [1949-502] F.C.R. 842.
(4) [1958] S.C.R. 1007.
703
communication passed by the appellant--religious head of a
community--was invalid. During the pendency of the suit
them Bombay Prevention of Ex-communication Act 42 of 1949
was enacted and one of the issues raised in the suit was
whether the order of ex-communication was invalid. This
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issue was tried as a preliminary issue and as it raised the
question of the vires of the Bombay prevention ’of Ex-
communication Act, 1949, the State of Bombay was impleaded
as a party-defendant in the suit. The trial court decided
the issue against the appellant and the order was confirmed
in appeal by the High Court of Bombay. Against the order
deciding the issue, an appeal was preferred to this Court
with certificate granted by the High Court under Art. 132
and Art. 133 of the Constitution, and it was held that the
appeal was not maintainable since the decision on the issue
did not finally dispose of the dispute between the parties.
In Srinivasa Prasad Singh v. Kesho Prasad Singh(1) an
order deciding that circumstances had not been established
such as would justify an order for stay of execution of a
decree under appeal was not a ’final order" and was on that
account not appealable to the judicial Committee. Similarly
in Druva Coal Company v. Benaras Bank(2) it was held that an
order by the High Court reversing the order of the Court of
First Instance granting a temporary injunction was not a
final order within the meaning of s. 109 of the Code of
Civil Procedure.
There is, therefore, ’abundant authority in support of
the view that an order is final within the meaning of Art.
133 of the Constitution, under s. 109 Code of Civil
Procedure or s. 205 of the Government of India Act, 1935, if
it amounts to final decision on the rights of the parties in
dispute in the suit or proceeding; if after the order is
made, the suit or proceeding still remains to be tried, and
the rights in disputes have to be determined, the order
is interlocutory.
Counsel for the appellant strongly relied upon a recent
judgment of this Court in Mohanlal Maganlal Thakkar v.
State of Gujarat(3) and contended that the view expressed in
the earlier cases is superseded. In Mohanlal Thakkar’s
case(a) after an enquiry under s. 476 Code of Criminal
Procedure, 1898, a Magistrate ordered that a complaint be
filed against a person in respect of offences under ss. 205,
467 and 468 read with s. 114 I.P. Code. In appeal the
Additional Sessions Judge held that the complaint was
competent only in respect of the offence under s. 205 read
with s. 114. The High Court dismissed a
revision application against the order of the Court of
Session. Certificate was there-
(1) 13 C.L.J. 681.
(2) 21 Cal. L.J. 281. (3) A.I.R. 1968 S.C. 733.
704
after issued by the High Court under Art. 134(1)(c) of the
Con stitution for leave to appeal against the order. The
competence of the High Court to grant the certificate was
challenged at the hearing of the appeal. This Court held
(Bachawat & Mitter JJ., dissenting) that the order passed
was a final order within the meaning of Art. 134(1) (c)
since the controversy between the parties when the the
complaint in respect of offences under ss. 467 and 468 read
with s. 114 I.P. Code was disposed of by the order of
dismissal and the proceeding regarding that question was
finally decided It was observed that the finality of that
order was not to be judged by co-relating it with the
controversy in the complaint, viz., when then the appellant
had committed the offence charged ,against him therein.
There is nothing in that judgment which supports the
contention that this Court has departed from the principle
of the earlier decisions or has suggested a different test
for determining the finality of orders. The Court in that
case was concerned merely with an order passed by the High
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Court which maintained the order of the Additional Sessions
Judge that a complaint under s. 205 read with s. 114 I.P.
Code could be filed against the appellant. The order of the
High Court finally disposed of the proceeding in the
Magistrate’s court relating to the expediency of
instituting criminal proceedings against the appellant. It
was thereafter for the court trying the complaint to decide
whether the offence complained of was committed by the
appellant. The proceeding for filing a complaint under s.
476 of the Code of Criminal Procedure was a self-contained
proceeding and was finally disposed of by the order
directing the filing of a complain under s. 205 read with s.
114 I.P. Code. The proceeding instituted on the complaint
was not part of or incidental to the proceeding for an
enquiry whether a complaint should be filed. The Court in
that case expressly approved of the earlier view at p. 736
where after referring to Kuppusami Rao’s case(1) observed:
Syedna Taher Saifuddin Saheb’s case(") observed:
" ...... these were cases where the
impugned orders were passed in appeals or
revisions and since an appeal or a revision in
continuation of the original suit or
proceeding the test applied was whether the
order disposed of the original suit or
proceeding. If it did not, and the suit or
proceeding was a live one, yet to be tried,
the order was held not to be final. Different
tests have been applied, however, to orders
made in proceeding independent of the
original or the main proceeding."
In our judgment an order passed by the High Court in
appeal which does not finally dispose of a suit or
proceeding and leave the rights and obligations of the
parties for determination in the suit or proceeding from
which appeal has arisen, is not final within
(1) [1947] F.C.R. 180. (2) E[1958] S.C.R.
1007.
705
he meaning of Art. 133(1)(a) and (b). The order refusing to
grant an interim injunction did not determine the rights and
obligations of the parties in relation to the matter in
dispute in the suit. We are unable to hold that, because
the plaintiff’s suit as a result of the order of the High
Court may become infructuous as framed and the plaintiffs
may have to seek amendment of the plaint to get effective
relief, an order which is essentially an interlocutory order
may be deemed final for the purposes of Art. 133 (1) of
the Constitution. In our judgment, Mohanlal Maganlal
ThakKar’s case(1) makes no departure from the earlier
judgments of the Judicial Committee, the Federal Court and
this Court. The plaintiffs will pay the costs of the
petitioners of the application for revocation of the
certificate.
G.C. Certificate
revoked.
(1) A.I.R. 1968 S.C. 733.
706