Supreme Court Allows Appeals Against High Court Order Dismissing Review Petitions in Sales Tax Matter. High Court's Statement That Case Did Not Involve Substantial Question of Law Held to Be Error Apparent on Face of Record Under Order XLVII Rule 1 CPC.

Civil appeals by special leave against the High Court's dismissal of review petitions filed under Order XLVII Rule 1 CPC seeking review of an order refusing certificate of fitness under Article 133(1) of the Constitution.

The appellant sought review of the High Court's order dated September 4, 1959 refusing certificate of fitness, and consequently leave to appeal to the Supreme Court against the High Court's judgment in three tax revision cases.

The High Court dismissed the appellant's applications for certificate of fitness on the ground that the case did not involve substantial question of law, despite earlier granting a certificate on an identical question for the assessment year 1949-50.

The Sales Tax authorities and the High Court had consistently held against the appellant on the interpretation of 'hydrogenated groundnut oil' for deduction under Rule 18(2); the High Court granted certificate for the 1949-50 appeal, but refused for 1950-51 to 1952-53; review petitions dismissed on January 6, 1961.

Whether the High Court's refusal of certificate of fitness under Article 133(1) on the ground that no substantial question of law was involved constituted an error apparent on the face of the record within the meaning of Order XLVII Rule 1 CPC. Whether the respondent could be permitted to raise a preliminary objection to the maintainability of the appeals after special leave was granted, when notice had been given before grant and the objection was not raised at that time.

The appellant contended that the High Court's order dated September 4, 1959 refusing certificate of fitness was vitiated by an error apparent on the face of the record because the same High Court had earlier granted a certificate of fitness on an identical question of law for the assessment year 1949-50, and the question whether hydrogenated groundnut oil was groundnut oil within Rule 18(2) was substantial. The appellant argued that the dismissal of the review petitions on the ground that the earlier special leave petition was dismissed as time-barred was erroneous and irrelevant to the merits of the review. The respondent raised a preliminary objection that the special leave granted to the appellant should be revoked, claiming that the appeals were not maintainable; however, the respondent did not urge these grounds at the time of the hearing of the special leave applications, despite notice, nor set them out in the statement of case filed under Order XVIII of the Supreme Court Rules.

An order refusing a certificate of fitness under Article 133(1) on the ground that the case does not involve substantial question of law can be reviewed under Order XLVII Rule 1 CPC if it is shown that the statement is an error apparent on the face of the record, such as when the same question of law was earlier held to be substantial by the same court in a similar matter. In special leave proceedings, where notice has been given to the respondent before grant, the respondent cannot later object to maintainability unless the ground arises subsequently or could not have been discovered with due care.

The learned Judges, however, by their order dated September 4, 1959 dismissed the petition stating: 'The judgment sought to be appealed against is one of affirmance. We do not think that it involves any substantial question of law as to the interpretation of the Constitution; nor do we regard this as a fit case for appeal to the Supreme Court.' We do not think that would furnish a sufficient ground for reviewing the order dismissing the petitions for leave to file an appeal to the Supreme Court. That apart, the Supreme Court was moved under Article 136 of the Constitution for special leave and that was dismissed may be on the ground that it was not flied in time. the statement in the order dated September 4, 1959, that the case did not involve any substantial question of law, was an 'error apparent on the face of the record' within the meaning of O. 47, r. 1, of the Code of Civil Procedure inasmuch as this was a case where without any elaborate argument one could point to the error and say that here was a substantial point of law which stared in the face.

For assessment year 1949-50, the appellant claimed deduction for hydrogenated oil; the Sales Tax authorities rejected, and the High Court upheld on February 11, 1955 in Tax Revision Case 120 of 1953. On February 21, 1956, the High Court granted certificate of fitness under Article 133(1), and the appeal was filed as Civil Appeal 498 of 1958, disposed of on October 18, 1960. For assessment years 1950-51 to 1952-53, the Sales Tax Officer decided against the appellant; the Deputy Commissioner dismissed appeals on April 5, 1955; the Sales Tax Appellate Tribunal dismissed on October 20, 1955; three Tax Revision Cases (75, 76, 77 of 1956) were dismissed by the High Court on October 7, 1958. The appellant filed miscellaneous petitions for certificate of fitness on February 16, 1959; the High Court dismissed on September 4, 1959. Review applications under Order XLVII Rule 1 CPC were filed on November 23, 1959 and dismissed on January 6, 1961. The appellant then obtained special leave from the Supreme Court after notice, leading to Civil Appeals Nos. 781-783 of 1962.

• Code of Civil Procedure, 1908: Order 47 Rule 1
• Constitution of India: Article 133(1), Article 136
• Supreme Court Rules, 1950: Order XVIII, Order XIX Rule 4
• Madras General Sales Tax Act, 1939: Section 3
• Turnover and Assessment Rules: Rule 5(k), Rule 18(2)