1970 JTR(SC) 375
1971 AIR(SC) 2319 ; 1970 2 SCC 806 ; 1970 SCD 964 ; 1971 2 SCJ 122 ; 1971 2 SCR 405 ; 1970 KLT(Online)(SC) 1255 ; 1970 KLT(Online) 1255 ; 1971 KHC 792
SUPREME COURT OF INDIA
M. HIDAYATULLAH, C.J.I., G.K. MITTER AND A.N. RAY, JJ.
Prakash Chand Agarwal and others, Petitioners
Versus
M/s. Hindustan Steel Ltd., Respondent.
Civil Misc. Petition No. 2351 of 1970 in the matter of Civil Appeal No. 1196 of 1970, D/- 15-9-1970.
An appeal by certificate is maintainable only against a final judgment, decree, or order that terminates the litigation. An order restoring a suit by setting aside an ex parte decree is not a final adjudication and cannot be the basis for granting such a certificate.
Act
Referred
:CIVIL PROCEDURE CODE
: O.9 R.59, O.9 R.9
CONSTITUTION OF INDIA: Art.133
(A) Constitution of India - Article 133 - Code of Civil Procedure, 1908 - Order 9, Rule 9 - Appeal by certificate - Finality of judgment - An appeal by certificate is maintainable only against a judgment, decree or final order of the High Court - The Constitution does not contemplate bringing an appeal in a suit which is still live and in which further proceedings are to be taken - The judgment, decree or order from which an appeal is brought must put an end to the litigation between the parties.
Facts of the case:
A suit was decreed in the absence of the defendant. The defendant applied to have the decree set aside, which was rejected by the trial court. However, the High Court held that there were valid reasons for setting aside the ex parte decree under Order 9, Rule 9 of the Code of Civil Procedure. Following the setting aside of the decree, the suit was restored to the file, and the High Court granted a certificate for appeal to the Supreme Court.
Findings of Court:
The court found that because the ex parte decree was set aside, the suit remained alive and the order did not constitute a final adjudication of the suit itself. Consequently, the certificate granted by the High Court was premature and incompetent.
Issues: Whether a certificate for appeal can be granted when the order of the High Court restores a suit to the file rather than providing a final adjudication that ends the litigation.
Ratio Decidendi: An appeal by certificate is only permissible against a final judgment, decree, or order that terminates the litigation between the parties. An order that restores a suit for further proceedings does not put an end to the litigation and therefore cannot serve as the basis for a certificate of appeal.
Result: Appeal dismissed.
Facts of the case:
A suit was decreed in the absence of the defendant. The defendant applied to have the decree set aside, which was rejected by the trial court. However, the High Court held that there were valid reasons for setting aside the ex parte decree under Order 9, Rule 9 of the Code of Civil Procedure. Following the setting aside of the decree, the suit was restored to the file, and the High Court granted a certificate for appeal to the Supreme Court.
Findings of Court:
The court found that because the ex parte decree was set aside, the suit remained alive and the order did not constitute a final adjudication of the suit itself. Consequently, the certificate granted by the High Court was premature and incompetent.
Issues: Whether a certificate for appeal can be granted when the order of the High Court restores a suit to the file rather than providing a final adjudication that ends the litigation.
Ratio Decidendi: An appeal by certificate is only permissible against a final judgment, decree, or order that terminates the litigation between the parties. An order that restores a suit for further proceedings does not put an end to the litigation and therefore cannot serve as the basis for a certificate of appeal.
Result: Appeal dismissed.
Certificate - Cited by counsel to justify the granting of a certificate, but the Court found the specific legal question in that case was not applicable here.
Finality - Leading Privy Council case establishing that an appeal by certificate is only maintainable against a judgment or order that puts an end to the litigation.
Finality - Reaffirmed the principle that the judgment, decree, or order from which an appeal is brought to the Supreme Court must be a final adjudication.
G.S.CHATTERJEE, R.K.AGRAWAL, SANTOSH CHATTERJI
Judgment
HIDAYATULLAH, C.J.I. : - 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 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 v. Gendalal Motilal Patni , AIR 1966 SC 1445 and says that his case is covered by this ruling. That was a case in which the only question to be considered was whether Article 133 of the Constitution was applicable in the two cases 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, the Constitution contemplates the filing of an appeal by certificate only 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. The leading case from the Privy Council is V. M. Abdul Rahman v .D. K. Cassim and Sons , (1933) 60 Ind App 76. There is a catena of cases in the High Court 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. State of Uttar Pradesh , (1961) 3 SCR 754 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 Order 9, Rule 9 (6?) 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.
Appeal dismissed.
For Citation : AIR 1971 SC 2319