Full Judgment Text
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PETITIONER:
PRAKASH CHAND AGARWAL & ORS.
Vs.
RESPONDENT:
M/S. HINDUSTAN STEEL LTD.
DATE OF JUDGMENT:
15/09/1970
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
MITTER, G.K.
RAY, A.N.
CITATION:
1971 AIR 2319 1971 SCR (2) 405
ACT:
Constitution of India. Art. 133-Grant of certificate, in a
live suit-Whether competent.
HEADNOTE:
The High Court granted certificate for leave to appeal to
this Court in a case where it set aside the ex-parte decree
in the suit and restored the suit to the Me of the trial
court.
HELD: The certificate granted by the High Court was
premature and
was not competent.
As a result of the setting aside of the decree the suit was
very much alive, and it could not be treated as a final
adjudication of the suit itself. The Constitution
contemplates the filing of an appeal by certificate only
against a judgment, decree of final order of the High Court.
It does not contemplate bringing an appeal in a suit which
is still a live suit and in which further proceedings are to
be taken. [405 H]
Ramesh & Anr. v. Gendalal Motilal Ratni & Ors. A.I.R.
[1966] S.C. 1445, V. M. Abdul Rahman & Ors. v. D. K. Cassim
JUDGMENT:
Sons v. The State of Uttar Pradesh, [1961] 3 S.C.R. 754,
referred to.
&
CIVIL APPELLATE JURISDICTION: C.M.P. No. 2351 of 1970.
(Application for stay by notice of motion) and Civil Appeal
No. 1196 of 1970.
Appeal from the judgment and order dated October 29, 1969 of
the Orissa High Court in Misc. Appeal No. 28 of 1967.
R. K. Agarwal, for the appellants.
Santosh Chatterjee and G. S. Chatterjee, for the respondent.
The Order-of the Court was delivered by
Hidayatullah, CJ. The appellants before us who come by way
of certificate from the High Court seek stay of a suit which
has been restored to file by the High Court. At the very
start we put to the counsel how certificate could have been
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granted in this case when the judgment and order of the High
Court were not final. The counsel brought to our notice
the case of Ramesh and another v. Gendalal Motilal Ratni and
others(1) and says that his, case is covered by this ruling.
This was a case in which the only question to be considered
was whether Art. 133 of the Constitution was applicable in
the two case-, decided when the claim in the original suit
or appeal to this Court was above Rs. 20,000/-. This
particular question was not before the court at all.
Indeed, them Constitution contemplates the filing of an
appeal by certificate only
(1) A.I.R. 1966 S.C. 1445.
406
against a judgment decree or final order of the High Court
it does not contemplate bringing an appeal in a suit which
is still a live suit and in which further proceedings are to
be taken. This has been the consistent view not only of
this Court but also of the Privy Council. ’Me leading case
from the Privy Council is V. M. Abdul Rahman and others v.
V. D. K. Cassim and Sons and another(1). There is a catena
of cases in the High Courts and also in this Court that the
judgment, decree or order from which appeal is brought to
this Court must put an end to the litigation between the
parties. This was reaffirmed in M/s. Jethanand and Sons v.
The State of Uttar Pradesh (2 ) approving the view of the
Privy Council referred to. Indeed, we could cite on this
aspect of the case quite a large number of precedents from
various courts in India. In the present matter, the suit
was decreed in the absence of the defendant who applied to
have the decree set aside and gave reasons for it. The
trial court did not accede to the prayer but the High Court
held that the matter was governed by O. 9 r. 9 of the Code
of Civil Procedure and that there were valid reasons for
setting aside the ex-parte decree. As a result of the
setting aside of the decree the suit is very much- alive
today and this cannot be treated as a final adjudication of
the suit itself. The certificate granted by the High Court
in such circumstances was premature and was not competent.
We accordingly set aside the certificate and dismiss the
appeal. There shall be no order as to costs.
Y.P. Appeal dismissed.
(1) (1933) L. R. 60 I.A. 76.
(2) (1961) 3 S. C. R. 754.
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