Chattisgarh High Court
Ajay Gupta vs State Of Chhattisgarh on 25 January, 2017
Author: Sanjay K. Agrawal
Bench: Deepak Gupta, Prashant Kumar Mishra, Sanjay K. Agrawal
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 255 of 2016
Judgment Reserved on: 23/09/2016
Judgment Delivered on : 25/01/2017
Ajay Gupta S/o Jagarnath Gupta, Aged about 40 years, R/o In front of
Dwarikapuri, Nawadih, NTPC Sipat, Bilaspur, Chhattisgarh, Thorugh its Power of
Attorney Holder - Abhimanyu Kumar Singh S/o Late Shri Shrikant Singh, Aged
about 34 years, R/o Rajkishore Nagar, Police Station Sarkanda, Post Sarkanda,
Tehsil and district Bilaspur, Chhattisgarh.
---- Appellant
Versus
1. State of Chhattisgarh, Through: The Secretary, Department of Excise,
Mantralaya, Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh.
2. Collector, Bilaspur, Collectorate Building, District Bilaspur, Chhattisgarh.
3. Excise Commissioner, Department of Excise, Mantralaya, Mahanadi Bhawan,
Naya Raipur, District Raipur, Chhattisgarh.
4. Assistant Commissioner, Department of Excise, In front of Collectorate
Building, Bilaspur, Chhattisgarh.
5. Dwarikesh Pandey S/o Late Shri Awadh bihari Pandey, Aged about 54 years,
R/o Dwarikapuri, Nawadih, NTPC Sipat, Bilaspur, Chhattisgarh.
---- Respondents
For Appellant : Shri Manoj Parnjpe and Shri Prasoon Agrawal, Advocates For State : Shri J.K.Gilda, Advocate General.
For Respondent No. 5 : Shri Vivek Sharma, Advocate. 2
Hon'ble Shri Deepak Gupta, Chief Justice Hon'ble Shri Prashant Kumar Mishra, J Hon'ble Shri Sanjay K. Agrawal. J.
C A V Judgment Per Deepak Gupta, Chief Justice
1. The following question has been referred to the Full Bench:
"Whether the proviso to Section 2(1) of the Act, 2006 is an absolute bar to entertain an appeal against an interlocutory order without considering the scope of the order and without considering whether the interlocutory order has decided the rights of the parties and has an element of finality attached to it?"
2. To appreciate the issue and the rival contentions of the parties, it would be appropriate to refer to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 which reads as follows:
"2. Appeal to Division Bench of the High Court from a judgment or order of one judge of the High Court made in exercise of original jurisdiction. - (1) An appeal shall lie from a judgment or order passed by one judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two judges of the same High Court.
Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India."
3. The issue raised before us is whether the proviso quoted hereinabove totally bars filing of appeals against all interim orders or not. Before dealing with the various authorities, we may point out that the provisions of this Act are identical to the provisions of the Madhya Pradesh Ucch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam (14 of 2006) (hereinafter called the 'MP Act'). The provisions of the MP Act have been considered by a Full Bench of the Madhya Pradesh High Court in Arvind Kumar Jain v. State {AIR 2007 Madhya Pradesh 276}. This judgment is the sheet anchor of the arguments of those counsel who urged that the proviso does not bar filing of appeals against all interlocutory orders.
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4. On the other hand, learned counsel for the Respondents, especially the learned Advocate General have contended that the language of the proviso is very clear. It is urged that the intention of the legislature is clear that it did not want to provide for appeals against interlocutory orders. It is further urged that when the statute creates a bar to an appeal against an interlocutory order by judicial interpretation, this Court cannot confer right of appeal.
5. In Shiv Shakti Coop. Housing v. Swaraj Developers {(2003) 6 SCC 659}, the Apex Court clearly held that the right of appeal is a statutory right. It has to be granted by statute and if no right is granted, then no appeal is maintainable. This view has been reiterated in Kamla Devi v. Kushal Kanwar & another {(2006) 13 SCC 295}.
6. The main part of Section 2(1) of the Act, 2006 creates a statutory right of appeal against any judgment or order passed by a Single Judge of this Court in exercise of his original jurisdiction under Article 226 of the Constitution of India to a Division Bench. However, the proviso clearly provides that no appeal shall lie against an interlocutory order or an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.
7. Strong reliance is placed by the Appellants on the judgment delivered by the Apex Court in Shah Babulal Khimji v. Jayaben D. Kania {(1981) 4 SCC 8}. In this case, the question before the Apex Court was whether an order of the learned Single Judge refusing to grant injunction or to appoint a receiver, was appellable or not and whether an appeal lay against an order of the learned single Judge of the Bombay High Court to Division Bench of the said Court. In that case, the appeal filed before the Division Bench arose out of a civil suit filed on the original side of the High Court wherein the plaintiff had sought interim relief but the learned Single Judge dismissed the said application. It was held that this order was a judgment within the 4 meaning of clause 15 of the Letters Patent of the Bombay High Court and therefore, an appeal was maintainable. In the said case, the substantial question of law raised before the Apex Court was with regard to the scope, ambit and meaning of the word judgment appearing in clause 15 of the Letters Patent of the Bombay High Court and corresponding clauses appearing in the Letters Patent of other High Courts. Interpreting the word 'judgment', the Apex Court held as under:
"114. In the course of the trial, the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge.
115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.
116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the Letters Patent. Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the Letters Patent. This 5 is what was held by this Court in Shanti Kumar's case (supra), as discussed above."
8. The judgment in Shah Babulal Khimji (supra) has been followed in a large number of cases including Liverpool & London S.P. & I Association Ltd. v. M.V.Sea Success I & Another {(2004) 9 SCC 512} and Midnapore Peoples' Coop. Bank Ltd. & Others v. Chunilal Nanda & Others {(2006) 5 SCC 399} which still holds the field.
9. We may now refer to the judgment of the Full Bench of the Madhya Pradesh High Court in Arvind Kumar Jain (supra) wherein the Madhya Pradesh High Court, after referring the aforesaid judgments, held as follows:
"26. From the aforesaid enunciation of law there remains no scintilla of doubt that interlocutory orders on certain circumstances, could be appealed against under the Letters Patent. Despite the fact they are interlocutory in nature they can be put into the compartment of judgment if it affects the merits of the case between the parties by determining some rights or liabilities. There can be three categories of judgments, final judgment, preliminary judgment and intermediary judgment or interlocutory judgment. If the order finally decides the question and directly affects the decision in the main case or an order which decides the collateral issue or the question which is not the subject matter of the main case or which determines the rights and obligation of the parties in a final way indubitably they are appealable."
10. Thereafter, the Full Bench recorded its conclusions. We are concerned only with conclusions (d), (e), (f), (g) and (h) which read as follows:
"31. In view of the aforesaid premised reasons we proceed to record our conclusions in seriatim:
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) The proviso to Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 does not create an absolute bar to prefer an appeal to the Division Bench.
(e) An appeal can be preferred against an order regard being had to the nature, tenor, effect and impact of the order passed by the learned Single Judge.6
(f) The guidelines given in the cases of Shah Babulal Khimji (supra), Central Mine Planning and Design Institute Ltd. (supra), Deoraj (supra), Liverpool & London S.P. & I. Association Ltd. (supra), Subal Paul (supra) and Midnapore Peoples' Cooperative Bank Ltd. (supra) are to be kept in view while deciding the maintainability of an appeal.
(g) It should be borne in mind that instances given in the aforesaid decisions are not exhaustive but illustrative in nature, because various kinds/categories of orders may be passed in exercise of jurisdiction under Article 226 of the Constitution of India.
(h) The facts in each case, the nature and the character of the order are to be scrutinised to appreciate the trappings of the same."
11. At the outset, we may state that we are fully in agreement with the Madhya Pradesh High Court with regard to the interpretation of the words "order' and 'judgment'. The words 'order' and 'judgment' will have to be interpreted in the manner as laid down in Shah Babulal Khimji (supra). Therefore, any order which affects the rights of the parties would be an order or a judgment. However, we have some difference of opinion with the Madhya Pradesh High Court insofar as the scope and interpretation of the proviso prohibiting appeals against interlocutory orders is concerned.
12. The Apex Court, in Commissioner of Income Tax, Mysore v. The Indo Mercantile Bank Ltd. {AIR 1959 SC 713}, laid down the guidelines as to how to understand a proviso and held as follows:
"Ordinarily the effect of an excepting or a qualifying proviso is to carve something out of the preceding enactment or to qualify something enacted therein which but for the proviso would be in it and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect."
13. In J.K.Industries Ltd. v. Chief Inspector of Factories and Boilers {(1996) 6 SCC 665| the Apex Court while dealing with the subject, held as follows:
"33. A proviso to a provision in a statute has several functions and while interpreting a provision of the statute, the Court is required to carefully scrutinise and find out the real object of the proviso appended to that provision. It is not a proper rule of interpretation of a proviso that the 7 enacting part or the main part of the Section be construed first without reference to the proviso and if the same is found to be ambiguous only then recourse may be had to examine the proviso as has been canvassed before us. On the other hand an accepted rule of interpretation is that a Section and the proviso thereto must be construed as a whole each portion throwing light, if need, be, on the rest. A proviso is normally used to remove special cases from the general enactment and provide for them specially.
34. A proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which, but for the proviso would be a part of the main provision. A proviso must, therefore, be considered in relation to the principal matter to which it stands as a proviso. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself.
35. Indeed, in some cases, a proviso, may be an exception to the main provision though it cannot be inconsistent with what is expressed in the main provision and if it is so, it would be ultra-vires of the main provision and struck down. As a general rule in construing an enactment containing a proviso, it is proper to construe the provisions together without making either of them redundant or otiose. Even where the enacting part is clear, it is desirable to make an effort to give meaning to the proviso with a view to justify its necessity."
14. In Director of Education (Secondary) v. Pushpendra Kumar {AIR 1998 SC 2230} the Apex Court held as follows:
"12.....An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision...."
15. The purpose of a proviso is to limit the generality of the main portion of the section. True it is that the proviso to a section cannot be used to import into the enacted part something which is not there but when the enacting part gives certain rights then the proviso can be used to put some limitation(s) on those rights.
16. It is contended by learned Advocate General on behalf of the State that Shah Babulal Khimji (supra) may not be strictly applicable to the facts of the present case. According to him, the Letters Patent of the Bombay High Court did not contain any clause prohibiting the filing of the appeals against 8 any interlocutory orders. It is submitted that though the word 'orders' and 'judgment' may have a very wide amplitude, when the language of the Act is clear and the proviso clearly lays down that no appeal lies against an interlocutory order, no appeal can lie against an interlocutory order.
17. In Shyam Sunder & Others v. Ram Kumar & Another {(2001) 8 SCC 24} the Apex Court explained how to interpret the provisions of an enactment in the following words:
"....when the words used in a statute is capable of only one meaning. In such a situation, the courts have been hesitant to apply the rule of benevolent construction. But if it is found that the words used in the statute give rise to more than one meaning, in such circumstances, the Courts are not precluded to apply such rule of construction. The third situation is when there is no ambiguity in a provision of a statute so construed. If the provision of a statute is plain, unambiguous and does not give rise to any doubt, in such circumstances the rule of benevolent construction has no application."
18. In Grasim Industries Ltd. v. Collector of Customs, Bombay {(2002) 4 SCC 297} the Constitution Bench of the Apex Court explained the principle of literal interpretation as under:
"10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC 1: 4 MIA 178] "we cannot aid the Legislature's defective phrasing of an 9 Act, we cannot add or mend and, by construction make up deficiencies which are left there". In case of an ordinary word there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding the particular case. This principle is too well settled and reference to few decisions of this Court would suffice. [See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, Palghat and Anr. (AIR 1990 SC 1747), Union of India and Anr. v. Deoki Nandan Aggarwal (AIR 1992 SC 96), Institute of Chartered Accountants of India v. Price Waterhouse and Anr. (1997 (6) SCC 312) and Harbhajan Singh v. Press Council of India and Ors. (JT 2002 (3) SC 21)]"
19. As already held by us if the language of a statute is clear and unambiguous, the Court cannot interpret the language in such a fashion that it defeats the purpose of the legislature. As far as the language of Section 2 (1) of the High Court of Chhattisgarh (Appeal to Division Bench) 2006, read with the proviso is concerned, it is more than obvious that the intention of the legislature was not to grant right of appeal against interlocutory orders. Therefore, we are of the view that the proviso bars appeals against interlocutory orders.
20. However, the matter cannot end here. Though, this matter has not been specifically referred, we are of the view that the Full Bench must also answer the question as to what are interlocutory orders because the second part of the question referred to the Full Bench deals with the scope of the orders and whether the orders have decided the rights of the parties and have an element of finality attached to them. During the course of proceedings, a Single Judge may pass many orders. Some may be procedural in nature which may not affect the rights of the parties, some may marginally affect the rights of the parties but they will still be interlocutory orders. Only those orders would not be interlocutory order which decide matters of moment, have an element of finality, or affect vital and valuable rights of the parties and which work serious injustice to the 10 party concerned. There may be orders which though passed at the interim stage decide material issues and which have great bearing on the final order to be passed. Some of these orders may have an element of finality attached to them. In our view, such orders cannot be termed to be interlocutory orders. Every order passed during pendency of the proceedings may be an interim order but every interim order may not necessarily be an interlocutory order.
21. The scope and ambit of the word "interlocutory orders" has been considered by the Apex Court in the context of the Criminal Procedure Code in a number of cases. In Amar Nath & Others v. State of Haryana & Another {(1977) 4 SCC 137} it was observed as under:
"6....The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appellable must be those which decide 'the rights and liabilities of the parties concerning a particular aspect. It seems to, us that the term "interlocutory order" in section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be 11 outside the purview of the revisional jurisdiction of the High Court."
22. In Madhu Limaye v. The State of Maharashtra {(1977) 4 SCC 551} the view taken in Amar Nath (supra) with regard to interpretation of the word 'interlocutory order' was reiterated in the following terms:
"10. As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally, More often than not, the revisional power of the High Court was resorted to in relation to inter- locutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2), in section
397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include subsection (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is-the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the 12 Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
23. The Supreme Court, in Madhu Limaye (supra), dealing with the meaning of the phrase 'interlocutory orders' in civil cases, observed as under:
"In passing, for the sake of explaining ourselves, we may refer to what has been said by Kania C. J. in Kuppuswami's case at page 187 by quoting a few words from Sir George Lowndes in the case of V.M.Abdul Rahman v. D. K. Cassim and Sons {AIR 1933 PC 58}. The learned law Lord said with reference to the order under consideration in that case :
"The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital, issue in the case, but it left the suit alive, and provided for its trial in the ordinary way."
Many a time a question arose in India as to what is the exact meaning of the phrase "case decided" occurring in section 115 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had, however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. In Baldevdas v. Filmistan Distributors (India) Pvt. Ltd. {(1969) 2 SCC 201} it has been pointed out :
"A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy."
We may give a clear example of an order in a civil case which may not be a final order within the meaning of Article 133(1) of the Constitution, yet it will not be purely or simply of an interlocutory character. Suppose for example, a defendant raises the plea of jurisdiction of a particular Court to try the 13 suit or the bar of limitation and succeeds, then the action is determined finally in that Court. But if the point is decided against him the suit proceeds. Of course, in a given case the point raised may be such that it is interwoven and interconnected with the other issues in the case, and that it may not be possible to decide it under Order 14 Rule 2 of the Code of Civil Procedure as a preliminary point of law. But, if it is a pure point of law and is decided one way or the other, then the order deciding such a point may not be interlocutory, albeit- may not be final either. Surely, it will be a case decided, as pointed out by this Court in some decisions, within the meaning of section 115 of the Code of Civil Procedure. We think it would be just and proper to apply the same kind to test for finding out the real meaning of the expression 'interlocutory order' occurring in section 397(2). "
24. In Halsbury's Laws of England, 3rd Edition, Vol. 22, at page 742 in para 1606, it has been held as follows:
"...a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.
In para 1607 it is said:
"In general a judgment or order which determines the principal matter in question is termed "final"."
In para 1608 at pages 744 and 745 we find the words:
"An order which does not deal with the final rights of the parties, but either (1) is made before judgment and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment, are to be worked out, is termed "interlocutory". An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals."
25. In Salaman v. Warner {1881 QB 734}, Lord Esher, M.R. stated:
"If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purpose of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute but, if given in other, will allow the action to go on, then I think it is not final, but interlocutory."14
26. It is thus clear that even an interlocutory order may be final in certain respects. In Madhu Limaye (supra), the Apex Court held that it is neither advisable nor possible to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final. However, we would like to give examples of one or two orders which may be interim in nature and do not bring the entire proceedings to a closure but decide matters of moment and have an element of finality attached to them. A writ Court, by way of interim relief may grant admission to the petitioner in a medical college. This order virtually amounts to allowing the writ petition and could be termed as an order having an element of finality attached to it. On the other hand, the order refusing to grant interim relief would be an interlocutory order.
27. In the same way, when a party files an application that it has vital interest in the proceedings and must be heard in the matter and if such an application is allowed, the order would be an interlocutory order. However, if the application is rejected and the party is ordered not to be impleaded, then the said order has an element of finality attached to it and as far as that party is concerned and an appeal would lie.
28. Another example would be where an order of demolition is challenged in a writ petition in which demolition is to take place in a day or two. If the writ Court does not grant an order of stay, the said petition would virtually become infructuous. This order can also be termed to have an element of finality attached to it. On the other hand, if a transfer order is not stayed, that has no element of finality because if the writ petition is allowed, the transfer order can be quashed at a later stage also. What flows from this discussion is that if the order has some irreversible effect which cannot be undone at the time of final hearing, then such order has an element of 15 finality attached to it and cannot be termed as interlocutory order.
29. As advised by the Supreme Court, one should not even attempt to make a list of orders which are interlocutory and which are not. This shall have to be decided in the facts of each case. However, while deciding whether an order challenged is interlocutory or not, the Court can be guided by various decision rendered in this behalf including the decisions referred to hereinabove.
30. We therefore answer the question referred to us by holding that proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 bars appeals against those interim orders which are totally interlocutory in nature, do not decide matters of moment and do not have an element of finality attached to them. Conversely, if the order vitally affects rights of the parties having bearing on the final adjudication of the case, then even though the order is interim, it cannot be termed as interlocutory order and an appeal would lie. An appeal would also lie against those orders which cannot be undone at the time of final hearing and which have an element of finality attached to them. The orders, effect of which cannot be undone at the time of final hearing, cannot be termed to be interlocutory orders and in such eventuality, an appeal would lie against such orders.
Sd/- Sd/-
(Deepak Gupta) (Prashant Kumar Mishra)
CHIEF JUSTICE JUDGE
Amit
16
Sanjay K. Agrawal, J
1. I have had the privilege of reading the erudite opinion formed by My Lord, Hon'ble the Chief Justice. The opinion formed by My Lord, Hon'ble the Chief Justice is in two parts. First part is with regard to the stated question referred by the Division Bench to the Full Bench to which I fully agree with the opinion formed and conclusion reached therein by My Lord, Hon'ble the Chief Justice holding that proviso to sub-section (1) of Section 2 of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 bars appeal against interlocutory order. (See para 19 of the opinion.)
2. Second part of the opinion formed by My Lord, Hon'ble the Chief Justice is with regard to the question as to what are the interlocutory orders. With great respect and in all humility at my command, I find myself unable to concur with the opinion so expressed therein and proceed to record my difference of opinion as under: -
3. The Division Bench has made reference to this Bench for answering the stated question as mentioned in para 1 of the opinion in exercise of power conferred to the Division Bench under Rule 35 of the High Court of Chhattisgarh Rules, 2007. Reference jurisdiction is consultative or advisory jurisdiction of the larger Bench which he renders on opinion being asked by the smaller Bench which may be either a Single Bench or it may be a Division Bench and it is purely advisory in nature. The larger Bench, as the case may be, as in the present case is the Full Bench, is to extend its advise in its jurisdiction which is advisory in nature and purely consultative in nature to enable the referring Benches, who are smaller in composition, to dispose of the matter, as the case may be, on the 17 basis of opinion given by the larger Bench. The law in this regard is very well settled.
4. Way back in the year 1961, in the matter of Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd. 1, a Constitution Bench of the Supreme Court has held in no uncertain terms that reference jurisdiction or special jurisdiction is different from appellate or supervisory jurisdiction. The Supreme Court while considering jurisdiction of the High Court in a reference under Section 66 of the Indian Income-tax Act, 1922 has held that the High Court hearing a reference under that section did not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal. It acted purely in an advisory capacity on a reference which properly came before it under Section 66(1) and (2) of the 1922 Act. Their Lordships have also held that the High Court gives the Tribunal advice, but ultimately it is for the Tribunal to give effect to that advice. Their Lordships further held that it was the essence of such a jurisdiction that the Court shall decide only questions which were referred to it and not any other questions. Similar is the proposition of law laid down in the matter of Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of Income-tax, Bombay North 2 in which Their Lordships have observed that the jurisdiction of the HIgh Court was confined to giving an opinion. It was purely advisory and the High Court had no jurisdiction to direct the Tribunal to take fresh evidence.
5. The decision in aforesaid two cases i.e. Scindia Steam Navigation's case (supra) and Petlad Turkey Red Dye Works (supra) has been followed with approval by the Supreme Court in the 1 AIR 1961 SC 1633 2 AIR 1963 SC 1484 18 matter of Commissioner of Income-tax, Delhi v. Bansi Dhar and Sons3.
6. In the matter of Kesho Nath Khurana v. Union of India and others4, the Supreme Court has held that where only a question of law is referred by single Judge to Division Bench, the Bench must decide that question only and send the case back to the single Judge along with its answer to the question. It has been observed as under
(SCC p. 39, para 1): -
"1. ... The Division Bench ought to have sent the appeal back to the Single Judge with the answer rendered by them to the question referred by the Single Judge and left it to the Single Judge to dispose of the second appeal according to law."
7. Likewise, in the matter of Kerala State Science & Technology Museum v. Rambal Co. and others5, the Supreme Court has held in unmistakable terms that jurisdiction of the larger Bench is confined in case of reference on the specific issue and the larger Bench cannot adjudicate upon the issue which is not the question referred to it and observed as under (SCC p.262, para 8): -
"8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to."
8. In the matter of T.A. Hameed v. M. Viswanathan6, the Supreme Court has also held that since only a reference was made to the Full Bench of the High Court, the Full Bench should have answered only the question referred to it and remitted the matter to the Division 3 AIR 1986 SC 421 4 1981 (Supp) SCC 38 5 (2006) 6 SCC 258 6 (2008) 3 SCC 243 19 Bench for deciding the matter on merits. It has been observed as under (SCC p. 245, para 12): -
"12. ... Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits."
9. The Supreme Court in the matter of Sukumaran, P.M. and another v. Puthiya Kuttimappilakath Shalima 7 again by relying upon Kesho Nath Khurana (supra) and Kerala State Science & Technology Museum (supra) has held that larger Bench should only answer the reference and send back the case.
10. Recently, the above-stated decision of Kesho Nath Khurana (supra) etc., were noted with approval by the Supreme Court in Constitution Bench judgment in the matter of Supreme Court Advocates-On- Record Association and another v. Union of India 8.
11. Not only this, Full Bench of this Court in the matter of Ratan Kumar Jain v. State of M.P. & Ors. 9 it has been held that reference jurisdiction is governed by the rules framed by the High Court and while considering the scope of advisory limited jurisdiction, it has further been held that unless the stated question is referred by the referring Judge to the larger Bench, the larger Bench is not right in answering the question and observed as under: -
"26. In the light of well settled legal principle quoted supra, it is clear to us that since the learned Single Judges while making reference though quoted Rule 35 but did not formulate any question/s to enable this Bench to answer them and hence, it does not appear possible for this bench to answer the reference.
27. Indeed, if this bench in its limited advisory reference jurisdiction probe to discern as to what 7 2008(2) Kerala Series 149 8 (2016) 5 SCC 1 9 2013 (II) MPJR-CG 71 20 question/s could have been possibly referred to the bench by the referring Judges or after reading the entire reference order, proceed to formulate the question/s and answer them, as urged by one of the learned counsel then perhaps we would be travelling beyond our advisory reference jurisdiction. It is not for this Bench to exercise the powers conferred by Rule 35 ibid and nor even advise as to what question could be or should be framed and referred to Full Bench. Such issues in our considered view are not in our province. In other words, the law does not permit us to exceed our jurisdiction while exercising the said jurisdiction which as observed supra is confined to answer only specific stated questions referred or to decide the matter itself, if referred in specific terms but not beyond it. As a matter of fact, our advisory reference jurisdiction would arise only when the stated question/s is referred but not otherwise.
28. Now so far as Rules on the issues are concerned, suffice it to say, the M.P. Rules take care of all situations arising in the case. A reference to Rules 8 to 12 of Chapter 4 which deal with reference to larger Bench may be sufficient to mention in this regard.
29. In the light of foregoing discussion, judicial discipline demand that we should not probe into any legal debate arising in the case and nor should embark upon any exercise for deciding issues which may have arisen except to decline to answer the reference that being the only option left in such circumstances. We accordingly decline to do so."
12. Another Full Bench of this Court in the matter of Alok Nigam v. Union of India and Ors.10 while considering the scope of reference made to Full Bench held that when the scope of reference is particular and specific, then the Full Bench has to answer the reference only. The Full Bench cannot go beyond that. It has been observed as under: -
"2. Shri M.L. Verma and Shri A.K. Sinha, learned counsel, argued that this Full Bench is required to answer the reference to the extent of maintainability of these writ petitions as PIL in the light of the judgment of the Apex Court dated 10th April, 2006. This Full Bench cannot go beyond that i.e. this Full Bench cannot enter into the merits of the cases. We have perused the reference and we find substance in the argument advance by learned counsel. The scope of reference 10 AIR 2007 Chhattisgarh 81 21 made to the Full Bench is to the extent that whether in view of the order of the Apex Court in the case of T.N. Godavarman dated 10th April, 2006 these writ petitions are liable to be dismissed in limine without going into the merits of the cases or not. When the scope of reference is particular and specific, then the Full Bench has to answer the reference only. The Full Bench cannot go beyond that. In this respect, we are fortified in our view by the judgment of the Apex Court in the case of Kerala State Science and Technology Museum v. Rambal Co. and others reported in (2006) 6 Supreme Court Cases 258 : (2006 AIR SCW 408). ...."
13. In the light of above-stated reason, in my considered opinion, the question as to what are the interlocutory orders cannot be answered in this limited reference made to the Full Bench by the Division Bench, as it is beyond the jurisdiction of the Full Bench to answer the question what has not been referred to it by the Division Bench seeking opinion.
Sd/-
(Sanjay K. Agrawal) Judge Soma 22 ORDER OF THE COURT In view of the majority judgment rendered, the question referred to the Full Bench is answered in the following terms:
"We therefore answer the question referred to us by holding that proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 bars appeals against those interim orders which are totally interlocutory in nature, do not decide matters of moment and do not have an element of finality attached to them. Conversely, if the order vitally affects rights of the parties having bearing on the final adjudication of the case, then even though the order is interim, it cannot be termed as interlocutory order and an appeal would lie. An appeal would also lie against those orders which cannot be undone at the time of final hearing and which have an element of finality attached to them. The orders, effect of which cannot be undone at the time of final hearing, cannot be termed to be interlocutory orders and in such eventuality, an appeal would lie against such orders."
Sd/- Sd/- Sd/- (Deepak Gupta) (Prashant Kumar Mishra) (Sanjay K. Agrawal) CHIEF JUSTICE JUDGE JUDGE