l Misc
Petitions Nos
401and 4012 of 1968
Applications by respondent No 1 for revocation of the certificate granted by the Madras High Court on 15th October 1968 under article 1331a  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 OSA No 25 and 27 of 1968
MC Setalvad
VP Raman DN Mishra and JB Dadachanji for the appellant
section Mohan Kumaramangalam
MK 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
Ms 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 Ms VO 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 Arts1331a and 1331b 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 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 article 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 section 205 of the Government of India Act 1935 section 109 of the Code of Civil Procedure and article 1331 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 vs Goverdhandas Vishindas RatanChand1 it was held by the Judicial Committee that an order of the Judicial Commissioner of Sind vacating an order of stay granted under section 19 of the Indian Arbitration Act 1899 and refusing to stay a proceeding was not a final order within the meaning of section 109a of the Code of Civil Procedure
Viscount Cave referred to Salaman vs Warner2 Bozson Altrincham Urban District Councila and Issacs vs Salbstein4 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 vs
DK Cassim  Sons5 the Judicial Committee observed that the expression final order within the meaning of section 109a of the Code of Civil Procedure 1908 is an 1 LR 47 IA 124
2 3 4 5 LR 60 IA 76
CI69 12 702 order which finally disposes of the rights of the parties in relation to the whole suit
In Abdul Rahman s case1 a suit was instituted by DK 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
Kuppusami Rao vs The King2 The Federal Court held that the expression final order in section 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 section 205 of the Government of India Act 1935 in Mohammad Amin Brothers Ltd and others vs 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  case3 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 vs The State of Bombay4 a suit was filed for a declaration that the order of ex 1 LR 60LA
76 2 3 4 703 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 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 article 132 and article 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 vs Kesho Prasad Singh1 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 vs Benaras Bank2 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 section 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 article 133 of the Constitution under section 109 Code of Civil Procedure or section 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 vs State of Gujarat3 and contended that the view expressed in the earlier cases is superseded
In Mohanlal Thakkar s casea after an enquiry under section 476 Code of Criminal Procedure 1898 a Magistrate ordered that a complaint be filed against a person in respect of offences under sections 205 467 and 468 read with section 114 IP Code
In appeal the Additional Sessions Judge held that the complaint was competent only in respect of the offence under section 205 read with section 114
The High Court dismissed a revision application against the order of the Court of Session
Certificate was there 1 13 CLJ 681
2 3  704 after issued by the High Court under article 1341c 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 article 1341 c since the controversy between the parties when the the complaint in respect of offences under sections 467 and 468 read with section 114 IP 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 Court which maintained the order of the Additional Sessions Judge that a complaint under section 205 read with section 114 IP 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 section 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 section 205 read with section 114 IP 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 case1 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 2 E1958 SCR 1007
705 he meaning of article 1331a 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 article 133 1 of the Constitution
In our judgment Mohanlal Maganlal ThakKar s case1 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
GC Certificate revoked


Summary:
Ms 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 articles 1331 a and 1331b 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 article 1331a 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 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 article 1331 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 vs Goverdhandas Vishindas Ratanchand LR 47 IA 124 Salaman vs Warner  Bazson vs Altrincham Urban District Council 1903 1 KB 547 Isaacs vs Selbstein  Abdul Rahrnan vs
DK Cassim  Sons LR 60 IA 76 section Kuppusami Rao vs The King  Mohammad Amin Brothers Ltd and Others vs Dominion of India and Others  Sardar Syedna Taher Saifuddin Saheb vs The State of Bombay  Srinivasa Prasad Singh vs Kesho Prasad Singh 13 CLJ 681 and Druva Coal Company vs Benaras Bank  referred to
Mohanlal Maganlal Thakkar vs State of Gujarat
AIR  explained