Bomadevara Veeraraja Venkata Narasimha Rao vs State of Andhra Pradesh and Another

Obul Reddi, J.—The question involved in this application for grant of leave to appeal to the Supreme Court is whether an order passed on an application made u/s 15(2)(a) of the Estates Abolition Act read with Section 5 of the Limitation Act excusing the delay in filing an appeal before the Tribunal is a ''final order''. The facts necessary for the disposal of this question may be briefly set out:--- The State of Andhra Pradesh filed an application before the Tribunal u/s 15(2)(a) of the Estates Abolition Act read with Section 5 of the Limitation Act to condone the delay in filing the appeal. The Tribunal, having regard to the facts presented before it found that sufficient cause was shown for condoning the delay, and therefore it was a fit case where the desecration should be exercised in favour of the State which filed the application. That order of the Tribunal was challenged in Writ Petition No. 16 or 1965. Or learned brother Chinnappa Reddy, J. before whom it came up for hearing, quashed the order of the Tribunal holding that the Tribunal had not exercised the discretion but had surrendered it, and that it was wholly unjustified in condoning the delay. that order was assailed before us in Writ Appeal No. 29 of 1968 and disagreeing with our learned brother, we came to the conclusion that it has not been shown that the Tribunal had acted either arbitrarily or capriciously in exercising its desecration or that it committed any error apparent on the face of the record in condoning the delay and that it had condoned the delay for sufficient reasons. In that view of the matter, we set aside the order of the learned Single Judge and allowed the appeal. It is this order that the petitioner proposes to challenge in the Supreme Court by obtaining a certificate under Art. 133 of the Constitution.

Mr. A. Venkataraman, the learned counsel appearing for the petitioner, contended that in so far as the order on the application for condonation of delay in concerned, there is a finality in as much as the order of this Court is not appealable and, therefore, the petitioner, is entitled to ask for a certificate under Art. 133(1) of the Constitution as the value of the subject-matter pertaining to the appeal before the Tribunal exceeds Rs. 20,000/-. There is no controversy so far as the value of the subject-matter is concerned as the extent of land involved is about 750 acres in Krishna District. The only question is whether the order in the Writ Appeal is a ''final order'' in the sense that it finally decides the rights of the parties. The judgment of ours upholding the order of the Tribunal in our opinion, is not a '' final order'' as there is no final adjudication of the rights of the parties.

The expression ''final order'' was construed by B. K. Mukherjea, J. (as he then was) in Mohd. Amin Bros. v. Dominion of India AIR 1950 FC 77 and the learned Judge observed at p. 78:

"The expression ''final order'' has been used in contradistinction to what is known as ''interlocutory order'' and the essential test to distinguish the one form the other has been discussed and formulated in several cases decided by the Judicial Committee. All the relevant authorities bearing on the question have been reviewed by this Court in their recent pronouncement in AIR 1949 1 (Federal Court) and the law on point, so far as this Court is concerned seems to be well settled x x x x x To quote the language of Sir George Lowndes in AIR 1933 58 (Privy Council) "the finality must be a finality in relation to the suit. If after the order, the suit is, still alive suit in which the rights of the parities have still to be determined, no appeal lies against it."

The fact that the order decides an important and even a vital issue is by itself not material. 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."

Mr. Venkataramana relied upon tow decisions of the Supreme Court in support of his contention that the present order finally decides the question involved in the sense that the Government would have had no right to prefer an appeal in which event the order of the Assistant Settlement Officer would have remained final. In Ramesh and Another Vs. Seth Gendalal Motilal Patni and Others, Hidayathullah, J. (as he then was) had occasion to deal with the question whether an order made by the High Court in exercise of its jurisdiction under Art. 2226 is a final order or not. his Lordship''s observations which have been strongly relied upon may be extracted;

"We are concerned here with the exercise of extraordinary original civil jurisdiction under Art. 226. Under that jurisdiction, the High Court does not hear an appeal or revision. The High Court is moved to intervene and to bring before itself, the record of a case decided by or pending before a Court or tribunal or any authority within the High Court ''s jurisdiction. A petition to the High Court invoking this jurisdiction is a proceeding quite independent of the original controversy. The controversy in the High Court, in proceedings arising under Article 226 ordinarily is whether a decision of or a proceeding before, a Court, a tribunal or authority, should be allowed to stand or should be quashed, or want of jurisdiction or on account of errors of law apparent on the face of the record. A decisions in the exercise of this jurisdiction, whether interfering with the proceeding, impugned or declining to do so is final decision in so far as the High Court is concerned because it terminates finally the special proceeding before it. But it is not to be taken that any order will be a final order. There are orders and orders. The question will always arise what has the High Court decided and what is the effect of the order. If, for example, the High Court declines to interfere because all the remedies open under the law are not exhausted, the order of the High Court may not possess that finality which the article contemplates. but the order would be final if the jurisdiction of a tribunal is questioned and the High Court either upholds it or does not. in either case the controversy in the High Court is finally decided. To judge whether the order is final in that sense it is not always necessary to correlate the decision in every case with the facts in controversy especially where the question is one of jurisdiction of the Court or tribunal. The answer to the question whether the order is final or not will depend on whether the controversy is finally over but whether the controversy raised before the High Court is finally over or not. If it is, the order will be apealable provided the other conditions are satisfied, otherwise not."

This is not a case, as has been pointed out by their Lordships, where the jurisdiction of the Tribunal has been questioned but a case where the discretion exercised by the Tribunal was assailed on the ground that judicial discretion was not properly exercised. We would certainly have had no hesitation in holding that our order is a ''final order'' if the jurisdiction of the tribunal was questioned and a decision was given on that.

The other decision relied upon by the learned counsel if Mohan Lal Magan Lal Thacker Vs. State of Gujarat, which, in our view, is not of much assistance to him. Their Lordships dealing with the question as to whether a judgment or an order is final or not, observed thus:

"The question as to whether a judgment or an order is final or not has been the subject-matter of a number of decisions; yet no single general test for finality has so far been laid down. The reason probably is that 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 ''final'' and ''interlocutory'' has therefore to be considered separately in relation to the particular purpose for which it is required. However generally speaking a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply."

In the connection, the learned Counsel for the petitioner sought to place reliance on the observation of Rajamanner, C. J. in H. Chandanmull and Co., by Proprietor, C. Laxmichand Mehta Vs. Mohanlal M. Mehta and Others, , that the question is not free from doubt. but it should not be forgotten that, in that case too, the learned Chief Justice was of the view that an order refusing to excuse the delay in filing an application cannot be treated except as a procedural order. Though it may have far-reaching consequences and adversely affect the rights of the parties. Therefore, the question is not whether our order has far-reaching consequence adversely affecting the rights of the parties, but whether by itself, it can be held to have determined the rights of the parties. Since there has been no determination of the rights of the parties and their rights cannot be determined on an application of this nature, which is purely procedural to condone delay, there is not final order. We are therefore, unable to certify that this is a fit case to grant leave to appeal to the Supreme Court. The petition is accordingly dismissed.

Petition for leave dismissed.