Punjab-Haryana High Court
Faqir Chand And Ors. vs The Financial Commissioner, Punjab, ... on 7 April, 1978
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 269, 1978 (1) RENTLR 741, 1978 REV LR 368, ILR (1978) 2 PUNJHAR 232, 80 PUN LR 357
Author: A.D. Koshal
Bench: A.D. Koshal
JUDGMENT S.S. Sandhawalia, J.
1. Whether the order of a learned Single Judge merely vacating an ex parte stay of dispossession from agricultural land in a pending writ petition is a judgment within the meaning of Clause 10 of the Letters Patent is the significant question which has arisen at the very threshold in this appeal.
2. The issue stems from a civil writ petition preferred by the petitioners against the orders of the Financial Commissioner, Punjab and the revenue authorities below. The Motion Bench issued notice of motion therein but as no appearance was put in on behalf of the respondents on the date of hearing the writ petition was admitted and ad interim stay of dispossession was granted with notice to the opposite party with regard to the stay for the 23rd of September, 1977. On the 30th of September, 1977 after hearing the learned counsel for the parties the learned Single Judge for detailed reasons recorded, held that no case for stay had been made out and accordingly the ex parte stay granted by the Motion Bench was vacated. Aggrieved by this order the appellants have preferred this letters patent appeal. A notice of motion having been issued to the respondents, a preliminary objection at once was raised on their behalf challenging the very competency of the appeal primarily on the ground that the mere vacation of a stay order was not a 'judgment' and consequently no appeal lay against the same under clause 10 of the letters patent. As the question is of obvious significance we have heard fulldress arguments on the point by either side.
3. Now the precise connotation of the word 'judgment' occurring in Clause 10 of the letters patent constituting the High Court of judicature at Lahore and the corresponding provisions relating to the other High Courts has engaged the attention and acumen of learned judges for well--nigh a century. The quest has no ended and perhaps is unlikely to do so. We therefore do not propose to further contribute to the volume of judicial literature on the highlighted that we intend to continue the consideration to the grant, refusal or vacation of stay orders during the pendency of an appeal or proceedings in the High Court.
4. The relevant part of the statutory provision around which the controversy inevitably revolves is in the following terms:--
"10. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court."
5. That there has been a wide--ranging conflict of judicial opinion in the various High Courts for nearly a century with regard to the finer nuances of the word "judgment" as used in the Letters Patent is in fact too manifest to be disputed. It is hence wasteful to advert to the plethora of precedent of other High Courts to which the learned counsel for the parties drew our attention. We, therefore, propose to confine ourselves to the decisions rendered within this Court and its predecessor High Court of Lahore. For the purposes of this jurisdiction it suffices to mention that the mainstay of the argument of the learned counsel for the appellants has been raised on three Division Bench judgments of the Lahore High Court, namely, Gokal Chand v. Sanwal Das, ILR 1 Lah 348 : (AIR 1920 Lah 326) : Firm Badri Das Janakidas v. Mathanmal, AIR 1922 Lah 185 and Shibba Mal v. Rup Narain, AIR 1928 Lah 904.
6. The said authorities undoubtedly support the argument of the learned counsel for the appellants. In Gokal Chand's case the Division Bench held that the order of the stay of execution of a pre--emption decree made during the pendency of a first appeal before the Court was a judgment within the meaning of Clause 10 of the Letters Patent and was therefore, appealable. This view has been followed subsequently in Badri Das Jankidas's case (supra) which in turn was followed in Shibba Mal's case.
7. We are, however, firmly of the view that the matter is now concluded against the appellants not by one but by three judgments of the final Court. It would, therefore, be an obvious exercise in futility to either examine the matter on principle afresh or to proceed to distinguish the aforesaid three cases on which primary reliance has been placed by Mr. Sarin. In Asrumati Debi v. Rupendra Deb AIR 1953 SC 198, their Lordships noticed the wide divergence of judicial opinion in this context but declined to resolve the same or to frame any exhaustive definition of the word 'judgment'. However, the preference for the Calcutta and the Madras High Courts' view is evident on the analysis of the judgment wherein they affirmed the view that an order transferring a suit from a Subordinate Court to the original side of the High Court of Calcutta under Clauses 13 of its Letters Patent was not a judgment and hence not appealable. In Radhy Shyam v. Shyam Behari Singh, AIR 1971 SC 2337 the question before their Lordships whether an order under a proceeding under Order 21 Rule 90 is a judgment and whilst holding that it is so it was observed that the character of the order must be such which affected the merits of a controversy between the parties by determining some disputed right or liability.
8. What, however, seems to set the matter at rest is the recent enunciation of their Lordships in Shanti Kumar R. Canji v. Home Insurance Co. of New York, AIR 1974 SC 1719. Therein whilst expressly approving and preferring the view of the Calcutta and the Madras High Courts, their Lordships accepted the following statement of law rendered more than a century back by Sir Richard Couch in Justice of the Peace for Calcutta v. Oriental Gas Co., (1872) 8 Beng LR 433(at p. 1720 of AIR SC):--
"We think that judgment' means a decision which affects the merits of the question between the parties by determining some right or liability may be either final or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it leaving other matters to be determined."
After briefly discussing the rival views, Chief Justice Ray speaking for the Court concluded as follows (at p. 1722 of AIR SC):--
"In finding out whether the order is a judgment within the meaning of Clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability."
9. An analysis of the aforesaid three judgments would make it manifest that the basic test which emerges and has been accepted by their Lordships is that to fall within the ambit of the judgment, the decision must involve the determination of some right or liability which affects the merits of the question between the parties. The two sine qua non if one may say so, therefore, are first the determination of some right or liability and its consequent effect on the merits of the questions on which the parties are at issue. If these two basic tests are satisfied then the preliminary, interlocutory, or the final nature of such a decision pales into relative insignificance.
10. Now it seems manifest to us that all the three judgments of the Lahore High Court relied upon by the learned counsel for the appellants do not and cannot possibly satisfy the test and the reasoning authoritatively laid down by their Lordships of the Supreme Court. Though these judgments were not cited and thus have not been referred to by their Lordships, it is plain that they can no longer hold the filed against the binding precedent of the final Court. In our view they stand impliedly but clearly overruled by the ratio of the aforesaid decisions. It must inevitably be declared that these authorities are no longer good law in view of the categoric observations finally made in Shanti Kumar R. Canji's case ( AIR 1974 SC 1719) (supra).
11. Coming nearer home and applying the tests accepted by their Lordships of the Supreme Court, can it possibly be said that a mere stay order which puts the parties to some terms during the pendency of an appeal or proceeding determines any right or liability which affects the merits of the lis betwixt them. The answer obviously must be in the negative. Taking the specific question in hand, it is plain that whether the appellants remain in possession of the land or are divested therefrom, the ultimate result of the writ petition and the issues in dispute betwixt the parties are not even remotely affected thereby., The grant, refusal or vacation of stay during the pendency of proceedings obviously involves no determination of any right or liability which may ultimately affect the merits of the controversy. Once the basic tests are not satisfied it appears to be plain that the mere putting the parties to some terms during the pendency of a litigation before the High Court without any determination of a right or liability affecting the merits of the issues is merely an order which cannot be raised to the pedestal of judgment. It consequently follows that no Letters Patent Appeal is competent against such an order or a decision.
12. We hold that the present appeal is not competent and, therefore, dismiss the same.
13. Appeal dismissed.