# r961 Slate of Bombay v. Fakir Umar Dhanse

- **Citation:** [1961] 3 S.C.R. 754
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeals Nos. 421 to 423 of 1957
- **Bench:** J. L. Kapur, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r961-slate-of-bombay-v-fakir-umar-dhanse-2084
- **Pages:** 6

## Headnote

Appeal to Supreme Court-Certificate of fitness by High Court
-Remand order, if and when final order-Substantial question of.
law-Power of High Court-Constitution of India, Art. r33-Code
of Cioil Pra<edure. r908 (V of ri)OB), s. ro9.
Pursuant to an agreement between the parties a dispute
relating to the supply of stone ballast was referred for adjudication to an arbitrator who was appointed under the agreement.
The arbitrator's awards were contested by the appellants but the
trial court held that the dispute was properly referred and the
awards were V'!lidly made. The High Court set aside the orders
3 S.C.R.
SUl'RE:vIE COURT REPORTS
755
of the trial court and remanded the case for decision after framing all the issues and giving the parties an opportunity to
produce evidence. The High Court then granted a certificate of
fitness or appeal to this Court under Art. l33(1)(c) of the
Constitution.
H e/d, that an order remanding a case without deciding any
question relating to the rights of the parties is not a judgment,
decree or final order within the meaning of Art. 133 of the
Constitution. An order is final if it amounts to a final decision
relating to the rights of the parties in dispute in the Civil
proceeding.
The power under s. 109 of the Code of Civil Procedure
having been expressly made subject to Ch. IV, Part V of the
Constitution an appeal lay under that section to this Court only
against judgments, decrees and final orders.
V. M. Abdul Rahman and Others v. V. D. K. Cassim and Sons
and Another (1933) L.R. 60 I.A. 76, referred to.
As the orders passed by the High Court did not .raise any
question of great ·public or private importance and even the
question of interpretation of Para. 3 of the first schedule of the
Indian Arbitration Act was 'left open to pe tried by the Civil
Judge, no certificate of fitness to appeal to this Court could be
granted under Art. 133 of the Constitution.

## Text

r961
Slate of Bombay
v.
Fakir Umar Dhanse
/(apur. J.
r96I
754
SUPREME COURT REPORTS
[1961]
S. 61. "The person unauthorisedly occupying any
such land may be summarily evicted by the Collector" and any crop raised in the land shall be
liable to forfeiture, and any building, or other construction erected thereon shall also, if not removed
by him after such written notice as the Collector
may deem reasonable, be liable to forfeiture or to
summary removal."
From the addition of these words it was sought to be
argued that these words were added to authorise the
Collector to remove any building or other construction
put up on that land by a person in unauthorised
occupation an1 it was argued that those words were
specifically added for the purpose. It is wholly
unnecessary for us to go into the question as to why
that particular power was given to the Collector. In
this case we are concerned with the meaning of the
word " eviction " as used in s. 66 and in our opinion
the meaning of those words is that on eviction land has
to be restored to the original position so as to be used
for the purpose for which it was given to the occupant.
For the reasons given above this appeal is allowed
and the decree of the High Court affirming that of the
trial court is set aside. The appellant will have its
costs throughout.
A ppeaJ, allowe.d.
M/S. JETHAN AND AND SONS
v.
THE STATE OF UTTAR PRADESH.
(J. L. KAPUR and J. C. SHAH, JJ.)
Appeal to Supreme Court-Certificate of fitness by High Court
-Remand order, if and when final order-Substantial question of.
law-Power of High Court-Constitution of India, Art. r33-Code
of Cioil Pra<edure. r908 (V of ri)OB), s. ro9.
Pursuant to an agreement between the parties a dispute
relating to the supply of stone ballast was referred for adjudication to an arbitrator who was appointed under the agreement.
The arbitrator's awards were contested by the appellants but the
trial court held that the dispute was properly referred and the
awards were V'!lidly made. The High Court set aside the orders
3 S.C.R.
SUl'RE:vIE COURT REPORTS
755
of the trial court and remanded the case for decision after framing all the issues and giving the parties an opportunity to
produce evidence. The High Court then granted a certificate of
fitness or appeal to this Court under Art. l33(1)(c) of the
Constitution.
H e/d, that an order remanding a case without deciding any
question relating to the rights of the parties is not a judgment,
decree or final order within the meaning of Art. 133 of the
Constitution. An order is final if it amounts to a final decision
relating to the rights of the parties in dispute in the Civil
proceeding.
The power under s. 109 of the Code of Civil Procedure
having been expressly made subject to Ch. IV, Part V of the
Constitution an appeal lay under that section to this Court only
against judgments, decrees and final orders.
V. M. Abdul Rahman and Others v. V. D. K. Cassim and Sons
and Another (1933) L.R. 60 I.A. 76, referred to.
As the orders passed by the High Court did not .raise any
question of great ·public or private importance and even the
question of interpretation of Para. 3 of the first schedule of the
Indian Arbitration Act was 'left open to pe tried by the Civil
Judge, no certificate of fitness to appeal to this Court could be
granted under Art. 133 of the Constitution.
CIVIL
APPELLATE JURISDICTION:
Civil Appeals
Nos. 421 to 423 of 1957.
Appeals from the judgment and order dated February 18, 1955, of the Allahabad High Court (Lucknow
Bench), at Lucknow in F.A.F.O. Nos. 11 to 13 of 1953.
J. B. Dadachanji, for the appellant.
C. B. Agarwala and 0. P. Lal, for the respondent.
1961. February 6. The Judgment of the Court was
delivered by
SHAH, J.-These three appeals were filed by the
appellants M/s. J ethanand & Sons with certificate of
fitness granted under Art. 133(1) (c) of the Constitution by the High Court of Judicature at Allahabad.
The appellants entered into three separate contracts
with the Government of the United Provinces (now
called the State of Uttar Pradesh) on March 20, 1947,
May 27, 1947, and June 28, 1947, for the supply of
stone ballast at Shankar Garh, District Allahabad.
The contracts which were in identical terms contained
the following arbitration ci11ouse;
97
M/s. ]ethanand
and Sons
v.
State of
Uttar Pradesh
Shah ].
Jjs. ]ethanand
and Sotis
v.
Stale of
Uttar Pradesh
Shah].
756
SUPREME COURT REPOHT:::I
[1961]
"All disputes between the parties hereto ansmg
out of this contract whether during its continuance
or after its rescission or in respect of the construction or meaning of any clause thereof or of tqe
tender, specitications and conditions or any of them
or any part thereof respectively or an:vthing arising
out of or incident thereto for the decision of which
no express provision has hereinbefore been nMrle,
shall be referred to the Superintending Engineer of
the Circle concerned and his decision sha,11 in all
cases and at all times be final, binding and conclusive between the parties."
Pursuant to the contracts, the appellants supplied
stone ballast. Thereafter, purporting to act under
cl. (16) of the agreements, the Executive Engineer,
Provincial Division, referred certain disputes between
the appellants and the State of Uttar Pradesh, allegt'd
to arise out of the performance of the contracts, to
arbitration of the Superintending Engineer of the
Circle concerned.
The
Superintending Engineer
required the appellants to appear before him at the
time fixed in the notices. The appellants by their
letter dated May 31, 1951, declined to submit to the
jurisdiction of the Superintending Engineer, and
informed him that if he hears and determines the
cases ex parte, the " decisions will not be binding"
on them. On February 7, 1953, the Superintending
Engineer made and published three awards in respect
of the disputes arising under the three contracts and
filed the same in the court of the Civil Judge, Lucknow.
The appellants applied for setting aside the awards
alleging that the con tracts were fully performed and
that the dispute alleged by the State of Uttar Pradesh
to have arisen out of the contracts could not arise
after the contracts were fully performed and that the
State could not refer those alleged disputes to arbitration. They also contended that the awards were not
valid in law because on the arbitration agreements
action was not taken under s. 20 of the Arbitration
Act. The Civil Judge, Lucknow, held that the disputes between the parties were properly referred to
the Superintending Engineer by the State of Uttar
3 8.C.R.
SUPREME COURT REPORT:->
757
Pradesh and that the awards were validly made.
Against the orders passed by the Civil Judge, Lucknow,
three appeals were preferred by the appellants to the
High Court of Judicature at Allahabad.
The H,igh Court set aside the orders passed by the
Civil Judge and remanded the cases to the Trial Judge
with a direction that he do allow the appellants and
if need be, the respondent to amend their pleadings,
and frame all is8ues that arise out of the pleadings
and allow the parties an opportunity to place such
evidence as they desire and decide the case on such
evidence. In the view of the High Court no proper
notice of the filing of the awards was served upon the
appellants and that they were "seriously handicapped
in their reply by the course which had been adopted
both by the court and the arbitrator in the conduct of
the proceedings in court." On the applications filed
by the appellants, the High Court granted leave to
appeal to this court under Art. 133(l)(c) of the Constitution, certifying that the cases were fit for appeal
to this court.
Counsel for the respondent has urged that the
High Court was incompetent to grant certificate
under Art. 133(1) (c) of the Constitution.
The order passed by the High Court was manifestly
passed in exercise of the inhen,nt power to make such
orders as may be necessary for the ends of justice or
to prevent abuse of the process of the court. Undel
Art. 133 of the Constitution, an appeal lies to thi~
court from any judgment, decree or final order in a
civil proceeding of a High Court if the High Court
certifies that:
(a) ........... .
(b) ............ or
(c) "the case is a fit one for appeal to the
Supreme Court."
In our view, the order remanding the cases under
s. 151 of the Civil Procedure Code is not a judgment,
decree or final order within the meaning of Art. 133 of
the Constitution. By its order, the High Court did
not decide any question relating to the rights of the
parties to the dispute.
The High Court merely
Iy6I
Mfs. }61hanan4
antl Sons
v.
Stat• of
U1ta1 PYadesA
Shah].
M /s. ]ethanand
and Sons
v.
Stale of
Uttar Pradesh
Shah ].
758
SUPREME COURT REPORTS
[1961]
remanded the cases for retrial holding that" there was
no proper trial of the petitions filed by the ·appellants
for sett.jug aside the awards. Such an order remanding the cases for retrial is not a final order within the
meaning of Art. 133(l)(c).
An order is final if it
amounts to a final decision relating to the rights of
the parties in dispute in the civil proceeding. If after
the order, the civil proceeding still remains to be tried
and the rights in dispute between the parties have to
be determined, the order is not a fihal order within
the meaning of Art. 133. The High Court assumed
that a certificate of fitness to appeal to this court may
be issued under s. 109(l)(c) of the Code of Civil Procedure, even if the order is not final, and in support
of that view, they relied upon the judgment of the
Judicial Committee of the Privy Council in V. M.
Abdul Rahman v. D. K. Oassim & Sons (1). Buts. 109
of the Code is now made expressly subject to Ch. IV,
Part V of the Constitution and Art. 133 (1) (c) which
occurs in that chapter authorises the grant of a certificate by the High Court 011ly if the order is a final
order. The inconsistency between s. 109 Civil Procedure Code and Art. 133 of the Constitution has now
been removed by the Code of Civil Procedure (Amendment) Act 66 of 1955. But even before the amending
Act, the power under s. 109(1) (c) being expressly
made subject to the Constitution, an appeal lay to
this Court only against judgments, decrees and final
orders.
Again, the orders passed by the High Court did not
raise any question of great public or private importance. In the view of the High Court, the applications
for setting aside the awards filed by the appellants
were not properly tried and therefore the cases
deserved t.o be remanded to the court of first instance
for trial de nova.
The High Court granted leave to
the parties to amend their pleadings; they al;;o directed the Civil Judge to frame " all the is.mes that arise
and allow the parties an opportunity of adducing such
evidence as they desired." It was an order for trial
de nova on frtlsh pleadings and 011 all iss:ues that may
(1) (1933) L.R. 60 I.A. 76.
I
3 S.C.R.
SUPREME COURT R.EPORTS
759
arise on the pleadings. Evidently, any decision given
by the High Court in the course of the order would
not in that trial de nova be binding and the cases will
have to be tried afresh by the Civil Judge. The High
Court. was of the view that the interpretation of
para. 3 of the first schedule of the Indian Arbitration
Act rnised a substautbl question of law. But by the
direction of the High Court, this quest.ion was also left
open to be tried before the Civil Judge.
We fail to
appreciate how an observation on a question which is
directed to be retried can still be regarded as raising a
question of law of great public or private. importance
justifying grant of a certificate under Art. 133 (1) (c) of.
the Constitution.
We accordingly vacate the certificate granted by
the High Court and dismiss these appeals with costs.
One hearing fee.
Appeals dismissed.
HAZRAT SYED SHAH MASTERSHlD ALI
AL QUADARI
v.
THE COMMISSIONER OF W AKFS,
WEST BENGAL.
(J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)
M utawalli - Temporary. appointment-II' hen can be made by
the Commissioner-Delegation of powers-Duty interwoven rvith
power-Distinction-Bengal ll'akf Act, r934 (Ben. XIII of r934),
SS. 29, 40.
During controversy between two brothers each of \Vhom
claimed to be appointed Mutawalli, the Commissioner of Wakfs
appointed a third brother as a temporary Mutawalli under
s. 40 of the Bengal Wakf Act, which appointment was challenged
on the ground that the order of the Commissioner appointing a
temporary Mutawalli was illegal because under the rules framed
by the Government of West Bengal the Board constituted under
Bengal Wakf Act could alone make the appointment and the
Commissioner could only make a report and recommendation to
the Board.
Held, that under the provisions of s. 40 read with s. 29 of
the Bengal Wakf Act, a temporary Mutawalli can be appointed
by the Commissioner to whom the powers and duties have been
IV! /s. f ethanand
and Sons
v.
State of
littar Pradesh
Shah J.
Ig61
February 6.