High CourtDivision Bench1970-09-15Appeal dismissed; certificate set aside; no costs.

Prakash Chand Agarwal & Ors v. M/S. Industrial Steel Ltd.

Case / Petition Number:Civil Appeal No. 1196 of 1970

Neutral Citation:(1971) 2 SCR 405

Case Details & Bench

Court: High Court
Hon'ble Judges: Hidayatullah, C.J.
G. K. Mitter, J.
A. N. Ray, J.
Judgment Date: 1970-09-15
Court Decision / Holding: The certificate granted by the High Court was premature and not competent. The Supreme Court set aside the certificate and dismissed the appeal. There shall be no order as to costs.
Final Disposition: Appeal dismissed; certificate set aside; no costs.

Parties to the Case

Appellants / Petitioners

Prakash Chand Agarwal & Ors

Respondents

M/S. Industrial Steel Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• R. K. Agarwal

Counsels for Respondents

• Santoshi Chatterjee
• G. S. Chatterjee

Case Synopsis & Summary

This Supreme Court decision concerns an application for stay of a suit and a civil appeal brought by Prakash Chand Agarwal and others against M/S. Industrial Steel Ltd. The High Court had restored the suit after setting aside an ex parte decree, with the ex parte decree originally being contested. The appellants sought a certificate under Article 133 of the Constitution to appeal this matter to the Supreme Court. The bench, consisting of Hidayatullah C.J. and G. K. Mitter and A. N. Ray, questioned whether such a certificate could be granted when the judgment and order of the High Court were not final. The counsel invoked Ramesh v. Gemlalal Motilal Ratni, arguing that a certificate could be granted in certain circumstances even where the amount involved exceeded Rs 20,000. The Court noted that this question was not before the court and that Art. 133 contemplates appeals only against judgments, decrees or final orders of the High Court, not against a live suit requiring further proceedings. The Privy Council authority in V. Abdul Rahman and Others v. D. K. Cassim & Sons and related Indian authorities were cited to emphasize that an appeal to this Court must terminate the litigation. Accordingly, the High Court’s grant of a certificate was held premature and not competent. The Court set aside the certificate and dismissed the appeal, with no order as to costs.

Provisions of Law Cited

Constitution of India Article 133Code of Civil Procedure Order 9 Rule 9

Legal Doctrines & Maxims

Appeal by certificate under Article 133 is against final judgments, decrees or orders of the High Court and not against a live suit requiring further proceedings.
The litigation must come to an end by a final adjudication; otherwise an appeal under Article 133 cannot lie.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that the High Court could grant a certificate for appeal in a live suit and that Article 133 contemplates appeals by certificate in appropriate circumstances, even when a High Court’s judgment or order is not final. They relied on Ramesh v. Gemlalal Motilal Ratni to argue that the certificate procedure could be available in certain cases where the subject matter exceeded monetary thresholds. They maintained that the suit was alive due to the High Court’s restoration after setting aside the ex parte decree, and thus the matter could still be appealed under the certificate route.

Contentions of Respondents

The respondents argued that a certificate under Article 133 is available only against judgments, decrees or final orders of the High Court and not in respect of a live suit that requires further proceedings. They emphasized that the High Court’s order restoring the suit kept it alive, and that the certificate to appeal is premature because the litigation had not been finally adjudicated. They cited the established principle from Privy Council and Indian authorities that appeals to this Court must terminate the litigation and cannot arise from ongoing primary proceedings.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ramesh & Anr. v. Gemlalal Motilal Ratni & Ors.	AIR 1966 SC 1445	Distinguished	Cited to discuss applicability of Article 133 in certain cases, but the court held the question before it was not actually covered by that decision; thus it was distinguished as not controlling the present matter.
V. Abdul Rahman and Others v. V. D. K. Cassim & Sons and Others	(1933) L.R. 60 I.A. 76	Positive	Privy Council ruling cited as leading authority for the principle that appeals by certificate relate to final judgments/decrees; supports the finality requirement for appeals.
Mis. Jethanand & Sons v. The State of Uttar Pradesh	(1961) 3 S.C.R. 754	Positive	Reaffirmed the Privy Council view on finality of judgments for certificate appeals; cited to reinforce the principle that a live suit cannot be pursued by certificate.

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Extracted Judgment Text

Exact text extracted from official judgment records.

405 (Application for stay by notice of motion) and Civil Appeal No. 1196 of 1970. Appeal from the judgment and order dated October 29, 196!) ,of the Orissa High Court in Misc. Appeal No. 28 of 1967. _R. K._ _Agarwal,_ for the appellants. _Santo.sh_ _Chatterjee_ and _G. S. Chatterjee,_ for the respondent. The Order of the Court was delivered by Hidayatullah, C.J. 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 Rame~h _and_ _another_ v. _Gemlalal Motilal Ratni and others(_ _[1]_ _)_ and says that his case is covered by this ruling. This was a case in which the only question to be considered was whether Art. 13 3 of the Constitution was applicable in the two cases decided when the claim in rhe original suit or appeal to this Court was above Rs. 20,000/-. This particular question was not before the coun at all. Indeed, the Constitution contemplates the filing of an appeal by certificate only (I) A.I.R. 1966 S.C. 1445. PRAKASH CHAND AGARWAL & ORS. I A B # c D E F G H PRAKASH CHAND AGARWAL & ORS. _v._ M/S. IUNDUSTAN STEEL LTD. _September IS,_ 1970 ## [M. H!DAYATULLAH, C.J., G. K. MITTER AND A. N. RAY, JJ.J _Constitution_ _of_ _India. A.rt._ 133-Grana _of_ _certificate, in a live_ _suit-_ _Whether competent._ The High Court granted certificate far leave to appeal to this Court in a case where it set aside the _ex-parte_ decree in the suit and restored the suit to the file of the trial court HELD : The certificate granted by the High Court was premature and was not competent. As a result of the setting aside of the decree the suit was very much alive, and It could not be treated. as a final adjudication of the suit itsel'f. The Constitution contemplates the filing of an appeal by certificate only against a judgment, decree of final order of the High Cowt. It does not OO!lfamplate bringing an appeal in a suit which is still a live suit and in which further proceedings are to be taken. (405 HJ _Ramesh_ _&_ _A.nr._ v. _Gendala/ Motilal Ratni_ _&_ _Ors._ AJ:R. (1966] S.C. 1445, _Y. M._ _A.bdul Rahmpn_ _&_ _Ors._ v. _D._ _K._ _Casslm_ 4 _Sons_ _&_ _A.nr._ (1933) L. R. 60 I.A. 76 and _Mis._ _/ethanand_ _&_ _Sons_ v. _The State_ _of_ _Uttor Pradesh,_ [1961] 3 S.C.R. 754, referred to. CIVIL APPELLATE JURISDICTION : C.M.P. No. 2351 o{ 1970. 406 SUPREME COURT REPORTS [1971] 2 S.C.R. against a judgment decree or final order of the High Court. Jt does not contemplate bringing an appeal in a suit which is stm a live suit and in which further proceedings arc 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 and 9thers_ v. _V._ _D. K. Cassim_ _a11d_ _Sons and_ _another(')._ There is a catena of cases in the High Courts and also in this Court that the judgment, decree or order from which appeal is brought to this Court must put an end lo the litigation between the parties. This was reaffirmed in _Mis._ _Jethana11tl_ _and_ ~?ns v. _The State_ _of Uttar Pri!desh(2)_ approving the view of the P:ivy Council referred to. Indeed, we could cite on this aspect of the case quite a large number of procedlmts 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 ### 0. 9 r. 9 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 µte 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. Y.P. _Appeal dismissed._ ### (I) (1933) t. R. 60 I.~. 76. (2) (1961) 3 S. C.R. 754. A ### 8 • # c D