Case Note & Summary
The appeals before the Supreme Court arose from three arbitration awards under contracts for supply of stone ballast between M/s. Jethanand & Sons and the State of Uttar Pradesh. The contracts contained an arbitration clause requiring disputes to be referred to the Superintending Engineer of the Circle, whose decision would be final and binding. The appellants supplied stone ballast under three separate contracts dated March 20, 1947, May 27, 1947, and June 28, 1947. Disputes arose, and the Executive Engineer referred them to the Superintending Engineer as arbitrator. The appellants objected to jurisdiction by letter dated May 31, 1951. The arbitrator made three awards on February 7, 1953, and filed them in the court of the Civil Judge, Lucknow. The appellants applied to set aside the awards, contending that the contracts were fully performed and no action was taken under Section 20 of the Arbitration Act. The Civil Judge held that the disputes were properly referred and the awards were validly made. On appeal, the Allahabad High Court set aside the Civil Judge's orders and remanded the cases for trial de novo, holding that proper notice of filing the awards was not served and the appellants were seriously handicapped. The High Court then granted a certificate of fitness under Article 133(1)(c) of the Constitution. The respondent State of Uttar Pradesh contended that the High Court was incompetent to grant the certificate because the remand order was not a final order and did not raise a substantial question of law. The Supreme Court held that an order of remand which did not decide any question relating to the rights of the parties is not a judgment, decree or final order under Article 133. The High Court had only remanded the cases for retrial because of procedural irregularities. The Court observed that an order is final if it amounts to a final decision relating to the rights of parties in dispute; if the civil proceeding still remains to be tried, the order is not final. Section 109 of the Code of Civil Procedure was expressly made subject to Chapter IV Part V of the Constitution, so appeals lay to the Supreme Court only against judgments, decrees and final orders, even before the Code of Civil Procedure (Amendment) Act 66 of 1955. The High Court's reliance on the Privy Council decision in V. M. Abdul Rahman v. D. K. Cassim & Sons was misplaced. Further, the High Court had left open the interpretation of paragraph 3 of the First Schedule of the Indian Arbitration Act for retrial; therefore, no question of great public or private importance arose. The Supreme Court accordingly vacated the certificate granted by the High Court and dismissed the three appeals with costs.
Headnote
A) Constitutional Law - Appeals to Supreme Court - Article 133, Constitution of India - Final Order Requirement - An order remanding a case without deciding any question relating to rights of parties is not a judgment, decree or final order; appeal lies only against final orders. The High Court set aside trial court orders and remanded for retrial under Section 151 CPC without final determination. Held that such remand order is not final and certificate under Article 133(1)(c) cannot be granted (Paras 18-23). B) Civil Procedure - Section 109 CPC - Subjection to Constitution - Section 109 made subject to Chapter IV Part V of Constitution; after amendment Act 66 of 1955 inconsistency removed, but even before, appeal lies only against judgments, decrees and final orders. The High Court erroneously relied on Privy Council decision in Abdul Rahman v. Cassim & Sons. Held that Section 109 cannot extend to non-final orders (Paras 24-26). C) Arbitration - Setting Aside Award - Remand for Trial De Novo - No Substantial Question of Law - High Court left interpretation of para 3 of First Schedule of Indian Arbitration Act open to retrial; therefore no question of great public or private importance arose to justify certificate. Held that observation on a question directed to be retried cannot be regarded as substantial question of law; certificate vacated and appeals dismissed with costs (Paras 27-35).
Issue of Consideration
Whether the High Court was competent to grant a certificate of fitness under Article 133(1)(c) of the Constitution when its order merely remanded the case for retrial and did not finally decide rights of parties; Whether the remand order raised a question of great public or private importance or involved a substantial question of law justifying appeal to Supreme Court.
Final Decision
The Supreme Court vacated the certificate granted by the High Court and dismissed the three appeals with costs, holding that the High Court's remand order under Section 151 CPC was not a judgment, decree or final order under Article 133 of the Constitution, and that no substantial question of law of great public or private importance arose.
Law Points
- An order remanding a case without deciding any question relating to rights of parties is not a judgment
- decree or final order under Article 133 of Constitution
- An order is final if it amounts to a final decision relating to rights of parties in dispute
- Section 109 CPC is subject to Chapter IV Part V of Constitution
- Certificate under Article 133(1)(c) only against final orders
- Remand for trial de novo leaves issues open
- so not substantial question of law
