judgement:
iminal Appeal No.105 of 1965.
Appeal from the judgment and order dated January 11, 1965 of the Gujarat High Court in Criminal Revision Application No. 378 of 1964.
N. N. Keswani, for the appellant.
G. L. Sanghi and section P. Nayar, for the respondent.
The Judgment of WANCHOO, C.J., SHELAT and VAIDIALINGAM, JJ. was delivered by SHELAT, J. BACHAWAT, J. on behalf of MITTER, J. and himself delivered a separate Opinion.
Shelat, J.
The appellant, a practising advocate, was engaged by Rama Shamal and Raiji Shamal two of the accused in Crimi nal Case No. 26 of 1963 in the court of the Judicial Magistrate, Baroda, in respect of charges under sections 302, 436, 334 read with section 149 of the Penal Code.
On January 12, 1963, the appellant presented a bail application on behalf of the said two accused.
The Magistrate granted bail on each of the two accused executing a personal bond of Rs. 1,500 with surety for the like amount.
On January 25, 1963, bail bonds were furnished by a person calling himself Udesing Abhesing.
The appellant identified that person as Udesing Abhesing and as personally known to him.
On the strength of his identification the Magistrate accepted the bonds and released the two accused on bail.
Thereafter, one of 687 them absented himself from the Court on three occasions and the Magistrate issued a notice on the said surety.
On March 11, 1963, the real Udesing Abhesing appeared and denied that he had executed the said bonds or stood as surety.
The Magistrate issued an informal notice to the appellant to explain why action should not be taken against him for identifying a person who had falsely impersonated as Udesing Abhesing.
The appellant gave his reply.
The Magistrate recorded statements of the real Udesing Abhesing and of one Chiman Shamal.
He did so to satisfy himself that there was substance in the allegation of the said Udesing that be was not the person who had stood as surety.
On July 19, 1963, the Magistrate issued a show cause notice to the appellant under section 476, Cr.
P.C. and the appellant filed his reply.
After an enquiry under section 476, the Magistrate ordered filing of a complaint against the appellant in respect of offences under sections 205, 467 and 468 read with section 114 of the Penal Code.
In an appeal filed by the appellant, the Additional Sessions Judge, held that the said complaint was justified but only in respect of the offence under section 205 read with section 114.
In a revision by the appellant a single Judge of the High Court of Gujarat passed the following order: "This is a matter in which this Court should never interfere in revision.
The revision application is, therefore, dismissed".
The High Court gave certificate under article 134(1)(c) of the Constitution and that is how this appeal has come up before us.
Mr. Sanghi for the respondent raised the preliminary conten tion that the High Court 's order dismissing the revision was not a final order as it did not determine the complaint filed by the Magistrate nor did it decide the controversy between the parties therein, viz., the State of Gujarat and the appellant, whether the appellant had committed the said offence.
That controversy being still a live one, the order, according to him, was not final, the certificate granted by the High Court was incompetent and consequently the appeal is not maintainable.
Article 134 (1) (c) reads as follows : "An appeal shall lie to the Supreme Court from any judgment, final order of sentence in a criminal proceeding of a High Court .
If the High Court certifies that the case is a fit one for appeal to the Supreme Court".
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 688 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.(1) In some of the English de cisions where this question arose, one or the other of the following four tests was applied.
Was the order made upon an application such that a decision in favour of either party would determine the main dispute ? 2.
Was it made upon an application upon which the main dispute could have been decided ? 3.
Does the order as made determine the dispute ? 4.
If the order in question is reversed, would the action have to go on ? The first test was applied in Salaman vs Warner(2) and Stan dard Discount Co. vs La Grange(3).
But the reasoning in the latter case was disapproved in A.G. vs Great Eastern Rail Co.(4).
In Shutrook vs Tufnell(5) the order did not decide the matter in the litigation but referred it back to the arbitrator, though on the application on which it was made, a final determination might have been made.
The order was held to be final.
This was approved in Bozson vs Altrincham Urban Council( 6) by Lord Halsbury who declined to follow the dictum in Salaman vs Warner(2) and Lord Alverstone stated the test as follows : "Does the judgment or order as made finally dispose of the rights of the parties? This test, however, does not seem to have been applied in A. G. vs Great Eastern Urban Council(6) where an order made on an application for summary judgment under R.S.C. Ord.
14 refusing unconditional leave to defend was held not to be an interlocutory order for purposes of appeal though made on an interlocutory application.
An interlocutory order, though not conclusive of the main dispute may be conclusive as to the sub ordinate matter with which it deals.
(1) Halsbury 'S Laws of England ( 3d Etc.) Vol.
22, 742 ' 743.
(2) (3) (4) (5) (6) 689 There are also a number of decisions on the question of finality by the Privy Council and the Courts in India.
In Abdul Rehman vs D. K. Cassim & Sons(1) the test applied was that "the finality must be a finality in relation to the suit.
If after the order the suit is still a live suit in.
which the rights of the parties have still to be determined no appeal lies against it".
And the fact that the impugned 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 is undoubtedly a final one but if the suit is still left alive and has yet to be tried in the ordinary way, no finality could attach to the order.
in this case the order was clearly an order of remand which kept the entire case undecided.
This test was adopted in section Kuppuswami Rao vs The King(2) where the court also held that the words 'judgment ' and 'order ' have the same meaning whether the proceeding is a civil or a criminal proceeding.
In Mohammad Amin Brothers Ltd. vs Dominion of India(3) the Federal Court following its earlier decision adopted against the test, viz., whether the judgment or order finally disposed of the rights of the parties.
In Sardar Syedna Taher Saifuddin Saheb.v.
The State of Bombay(4), this Court applying, the test held that the appeal before it was not maintainable as the impugned order disposed of a preliminary issue regarding the validity of the Bombay Prevention of Excommunication Act, 1949.
but (lid not decide the rest of the issues in the suit.
In Jethanand and Sony vs The State of Uttar Pradesh(5) the order on.
which certificate under article 133 (1) (c) was granted was clearly an order of ' remind.
Indeed, the High Court gave leave to the parties to amend the pleadings and directed the trial court to hold a de novo trial on the amended pleadings and the issues arising therefrom and the order was said to be not a final order since the dispute between the parties still remained to be tried by the trial Court.
But these were cases where the impugned orders were passed in appeals or revisions and.
since an appeal or a revision is continuation of the original suit or proceeding the test applied was whether the order disposed of the original suit or proceeding.
11 ' it did not, and the suit or proceeding was a live one, vet to be tried.
the order was held not to be final.
Different tests have been applied.
however to orders made in proceedings independent of the original or the main proceedings.
Thus in Premchand Sastramdasv.
The State of Bihar(6) an order of the High Court dismissing an application to direct the Board of Revenue to state a case to the High Court under the Bihar Sales tax Act, 1944, was held (1) 6, I.A. 76.
(3) (5) ; (2) (4) (6) ; 690 not to be a final order on two grounds : (1) that the order was made under a jurisdiction which was consultative and standing by itself, it did not bind or affect the rights of the parties though the ultimate order which would be passed by the Board would be based on the opinion expressed by the High Court, and (2) that on a construction of article 31 of the Letters Patent of the High Court of Patna an appeal would lie to the Privy Council only in cases of orders passed by the High Court in its appellate or original jurisdiction and not the advisory jurisdiction conferred by the Act.
It is clear that though the proceeding in which the High Court passed the impugned order may be said to be an independent proceeding, one of the tests applied was that it did not determine the rights of the parties as the controversy as to the liability of the assessee still remained to be determined by the Board.
The decision in State of Uttar Pradesh vs Sujan Singh(1) does not help because the proceeding in which the impugned order was passed was assumed to be an interlocutory one arising from and during the course of the trial itself.
The question was whether the order rejecting the State 's claim of privilege from producing a certain document was a final order within the meaning of article 134(1) (c).
The criminal proceedings, said the Court, were the proceedings against the respondents for an offence under section 6(1) of the Prevention of Corruption Act, 1947.
They were still pending before the Special Judge.
In the course of those proceedings the respondents applied for the production of the document by the Union Government and that was allowed by the Court.
The order, therefore , was an interlocutory order pending the said proceedings.
It did not purport to decide the rights of the parties i.e. the State of Uttar Pradesh and the respondents, the accused.
It only enabled the accused to have the said document proved and exhibited in the case and therefore was a procedural step for adducing evidence.
The court also said that assuming that the order decided some right of the Union Government, that Government was neither a party to the criminal proceedings nor a party either before the High Court or this Court.
This decision was clearly on the footing that the respondents ' application for production of the document in which the Union Government, not a party to the trial, claimed privilege was an interlocutory and not an independent proceeding.
The question is what would be the position if (a) the application was an independent proceeding, and (b) if it affected the right of the Union Government.
The decision in Ramesh vs Patni(2) would seem to throw light on these questions.
There the Claims Officer under the Madhya Pradesh Abolition of Proprietory Rights Act, 1950 (1) [1964]7S.C.R.734.
(2) ; 691 held in an application by the appellants that a debt due by them to the respondents was a secured debt though the respondents had obtained a decree therefore.
He, accordingly, called upon the respondents to file their statement of claim as required by the Act.
The respondents filed the statement, but the officer held that it was out of time and discharged the debt.
In appeal the Commissioner held that though the Claims Officer had jurisdiction, he could not discharge the debt as action under section 22(1) of the, Act had not been taken.
The appellants thereupon filed article 226 petition alleging that the Commissioner had no jurisdiction to entertain or try the appeal.
The High Court dismissed the petition summarily.
The contention was that the High Court 's order was not a final order be cause it did not decide the controversy between the parties and did not of its own force affect the rights of the parties or put an end to the controversy.
This court observed: (1) that the word 'proceeding ' in article 133 was a word of a very wide import, (2) that the contention that the order was not final because it did not conclude the dispute between the parties would have had force if it was passed in the exercise of the appellate or revisional jurisdiction of the High Court, as an order of the High Court if passed in an appeal or revision would not be final if the suit or proceeding from which there was such an appeal or revision remained still alive after the High Court 's order, (3) but a petition under article 226 was a proceeding independent of the original controversy between the parties; the question therein would be whether a proceeding before a Tribunal or an authority or a court should be quashed on the ground of want of jurisdic tion or on other well recognised grounds and that the decision in such a petition, whether interfering or declining to interfere, was a final decision so far as the petition was concerned and the finality of such an order could not be judged by co relating it with the original controversy between the parties.
The court, however, observed that all such orders would not always be final and that in each case it would have to be ascertained what had the High Court decided and what was the effect of the order.
If, for instance, the jurisdiction of the inferior tribunal was challenged and the High Court either upheld it or did not, its order would be final.
The effect of this decision is that a writ petition under article 226 is a proceeding independent of the original proceedings between the parties; that the finality of an order passed in such an independent proceeding is not to be judged from the fact that the original proceedings are not disposed of by it but are still pending determination; that the test as to whether the impugned order determines the rights of the parties in controversy in the original proceedings instituted by one of them would not apply to a proceeding independent of such original proceedings; and that if the L2 Sup CI/68 14 692 order finally determines the controversy in such a proceeding and that proceeding is disposed of, the order is final in so far as that controversy is concerned.
Even an order ex facie interlocutory in character has been held to be final if it finally disposed of the proceeding though the main controversy between the parties remained undisposed of.
An illustration of such a case is to be found in the State of Orissa vs Madan Gopal(1).
The dispute there was whether the State Government had the power to annul or cancel leases granted by the ex proprietor whose territory had under the agreement of merger merged in the Union Territory and by reason of section 4 of the Extra Provincial Jurisdiction Act, 1949 was administered by the State of Orissa.
The respondents gave notice to the State under section 80 of the Code of Civil Procedure but apprehensive that before the prescribed period expired, the State might annul their leases filed a writ petition.
The High Court did not decide the dispute but granted a mandamus restraining the Government from taking action until the proposed suits were filed.
in an appeal against that order the State contended that the order was not final as it was for an interim relief and the dispute between the parties remained to be deter mined in the proposed suits.
Though the order had not determined the rights of the parties, this Court negatived the contention and held that the order was final as 'in view of the fact that with these orders the petitions were disposed of finally and nothing further remained to be done in respect of the petitions".
Facts similar to the facts in the present case were in Durga Prasad vs State of U.P.(2).
A complaint was filed charging the applicant with offences, inter alia under section 193 of the Penal Code. ']"he applicant filed an appeal before the Sessions Judge under section 476B of the Code of Criminal Procedure against the order filing the complaint.
The Sessions Judge held that the order was bad as section 476 under which the complaint was filed stood impliedly repealed by section 479A and set aside the order filing the complaint.
In a revision against that order, the High Court held that the Sessions Judge was not right and setting aside his order remanded the matter to him to decide it on merits.
The High Court on an application for certificate held that its order was not final as the real controversy between the parties i.e. the State and the applicant, was whether the complaint was justified.
Since that question was remitted to the Sessions Judge for determination on merits, the order was only one of remand and did not determine the aforesaid controversy.
This decision proceeds on the footing that there were two independent controversies between the parties involved in the two proceedings.
One was the complaint which charged the applicant with the offence under section 193 of the Penal Code and the other was the appeal which he (1) [1952] S.C.R. 28.
(2) A.I.R. 1960 All.
69 3 filed before the Sessions Judge alleging that the complaint was not justified and that it could not be filed under section 476 as it was impliedly repealed by section 479A of the Code of Criminal Procedure.
The order was held, not to be final because it did not determine the latter controversy viz., whether the complaint was justified and not on the ground that the controversy in the complaint that the appellant had committed the offence with which he was charged, had yet to be tried by the court.
It follows that according to the, High Court 's reasoning its order would have been final, if, instead of remanding the matter to the Sessions Judge the High Court had held either that it was justified or not justified.
This decision is in conformity with the ratio laid down in Ramesh vs Patni(1) and State of Orissa vs Madan Gopal(l).
The aforesaid discussion leads to the conclusion that when the Magistrate ordered the filing of the complaint against the appelant, the parties to that controversy were the State and the applicant and the controversy between them was whether the appellant had committed offence charged against him in that complaint.
The appeal filed by the appellant before the Additional Sessions Judge was against the order filing the complaint, the controversy therein raised being whether the Magistrate was, justified in filing it, that is to say, whether it was expedient in the interest of justice and for the purpose of eradicating the evil of false evidence in a judicial proceeding before the Court.
The controversies in the two proceedings were thus distinct though the parties were the same.
When the Additional Sessions Judge held that the complaint was justified in respect of the offence under section 205 read with section 114 and was not justified in respect of the other offences his judgment in the absence of a revision by the State against it finally disposed of that part of the controversy, i.e., that the complaint in respect of offences under sections 467 and 468 read with section 114 was not justified.
When the appellant filed re vision in respect of the complaint for the remaining offence under section 205 read with section 114 the Single Judge of the High Court dismissed that revision.
His order of dismissal disposed of that controversy between the parties and the proceeding regarding that question as to whether the complaint in that regard was justified or not was finally decided.
As observed in Ramesh vs Patni(1) the finality of that order was not to be judged by corelating that order with the controversy in the complaint, viz., whether the appellant had committed the offence charged against him therein.
The fact that that controversy still remained alive is irrelevant.
It must consequently be held that the order passed by the High Court in the revision filed by the appellant was a final order within the meaning of article 134(1) (c).
(1) ; (2) [1952] S.C.R 28.
694 Even so, the next question is whether this was a case where the High Court could have granted the certificate.
In Haripada Dey vs The State of West Bengal, (1) it was held that the High Court had no jurisdiction to grant a certificate under article 1 3 4 (1 ) (c) on a mere question of fact.
In Bab vs State of Uttar Pradesh, ( 2 ) it was again observed that the Constitution does not confer ordinary criminal jurisdiction on this Court except in cases covered by clauses (a) and (b) of article 134 which provide for appeals as of right.
The High Court before it certifies the case in cases not covered by clauses (a) and (b) of article 134 must be satisfied that it involves some substantial question of law or principle.
Only a case involving something more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate under article 134(l ) (c) which alone applies in this case.
The question in the revision application before the High Court was whether the Magistrate was right in his conclusion that offences referred to in section 1 95 (q) (b) or (c) of the Code of Criminal Procedure appeared to have been committed in or in relation to a proceeding in his court and that it was expedient in the interest of justice to file a complaint.
Obviously, this is a question of fact and involve no substantial question of law or principle.
It seems that the certificate was issued because it appeared as if the single Judge in the language in which he passed his order meant that the High Court as a matter of law would never exercise its revisional jurisdiction in such cases.
The order, how ever, cannot mean that the High Court cannot entertain.
and decide revision applications in respect of orders passed tinder section 476 of the Code of Criminal Procedure.
What the single Judge presumably meant was that the question being one of fact only.
the High Court would not interfere particularly where there is a concurrent finding both of the Magistrate and the Sessions Judge in appeal.
The question being one of fact only and there being no substantial question of law or principle, the High Court was not competent to certify the case under article 134 (1) (c).
In this view it is not necessary to go into the contentions on merits raised by the appellant 's counsel.
The appeal is not maintainable and is dismissed.
Bhachawat, J. The Judicial Magistrate, First Class, Third ,Court Baroda made an enquiry under section 476 of the Code of Criminal Procedure and directed the.filing of a complaint ' against the appellant in respect of offences under sections 205, 467 and 468 read with section 114 of the Indian Penal Code alleged to have been committed by the appellant in relation to proceedings in his Court.
He found that there was a prima facie case for enquiry into the (1)[1956]1 S.C. R. 639.
(2) ; 695 offences and it was expedient in the interests of justice that such an enquiry should be made.
In an appeal filed after the complaint was made, the Additional Sessions Judge, while setting aside the order in respect of the offences punishable under sections 467 and 468 read with section 114, confirmed the order directing the filing of a complaint with regard to the offence punishable under section 205 read with section 114.
A revision application filed by the appellant was dismissed by the High Court.
In view of section 195(1)(b) of the Code of Criminal Procedure, a prosecution for an offence punishable under section 205 read with section 114 alleged to have been committed in relation to a proceeding in any Court cannot be launched without a complaint in writing of such Court or of a superior Court.
The effect of the order of the High Court confirming the direction for the filing of a complaint in respect of the offence is that the bar of section 195 ( 1 ) (b) is removed, and the trial of the offence can now proceed.
The appellant is still on trial.
The Court has not pronounced on his guilt or innocence, He is being tried for the offence by a competent Court and an order of conviction or acquittal is yet to follow.
The order of the High Court involves no determination of the merits of the case or of the guilt or innocence of the appellant.
From whatever point of view the matter is looked at, the order is interlocutory.
In a civil proceeding, an order is final if it finally decides the rights of the parties, see Ramchand Manjilal vs Goverdhandas Vishindas Ratanchand(l).
If it does not finally decide the rights of the parties the order is interlocutory, though it conclusively determines some subordinate matter and disposes of the proceeding in which the subordinate matter is in controversy.
For this reason, even an order setting aside an award is interlocutory, fee Croasdell and Cammell Laird & Co., Limited vs In re(2).
A similar test has been applied for determining whether an order ill a criminal proceeding is final, see section Kuppuswami Rao vs The King(: ').
For the purposes of this appeal, we do not propose to examine all the decisions cited at the bar and to formulate a fresh test on the subject.
Whatever test is applied, an order directing the filing of a complaint and deciding that there is a prima facie case for an enquiry into an offence is not a final order.
It is merely a preliminary step in the prosecution and therefore an interlocutory order.
As the order is not final, the High Court was not competent to give a certificate under article 1 34 (1) (c) of the Constitution.
The appeal is not maintainable and is dismissed.
G.C. (1) (1920) L.R. 47 I.A. 124.
(2) (3) Appeal dismissed.

summary:
After an enquiry under section 476 of the Code of Criminal procedure the Judicial Magistrate, Baroda, ordered that the appellant he prosecuted for offences under sections 205, 467 and 468 read with section 114 of the Indian Penal Code.
In Appeal the Additional Sessions Judge held that the said complaint was justified but only in respect of the offence under section 205 read with section 114.
The High Court dismissed the appellant 's revision pettion but granted a certificate under article 134(1)(c).
The appellant came to this Court.
On behalf of the respondent State it was contended that the High Court 's order dismissing the revision was not a final order as it, did not determine the complaint filed by the Magistrate nor did it decide the controversy between the parties viz., the State of Gujarat and the appellant.whether the appellant had committed the offence.
Held : (Per Wanchoo C. J. and Shelat and Vaidialingam JJ.) (i) A judgment or order may be final for one purpose and interlocutory another or final as to part and interlocutory as to part.
The meaning of the two words 'final ' and 'interlocutory ' his, 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.
[687 H; 688 A ,B] Salaman vs Warner , Standard Discount Co., vs La Grange, , A. Great Eastern Rail Co. [1879] 27 W.R,.
759, Shutrook vs Tufnell, , Bozson vs
Altrincham Urban Council, , Abdul Rehman vs The King [1947] Cassim & Sons vs 60 IA.
76, S.Kuppusami Rao vs King, , Mohammad Amin Brothers Ltd. vs Dominion of India, Sardar Svedna Taher Saifuddin Saheb vs The State of Bombay , Jethainand and Sons vs The State of Uttar Pradesh ; , Premchand Satramadas vs State of Bihar ; , State of Uttar Pradesh vs Sujan Singh, [1964] 7 S.C.R. and State of Orissa vs Madan Gopal [1952] S.C.R. 28, referred to.
(ii) The order of the High Court in the present case disposed of the controversy whether the filing of the complaint against the appellant was justified, The finality of that order was not to be judged by co relating that order with the controversy in the controversy viz., whether the appellant had committed the offence charged against him therein.
The fact 686 that that controversy remained alive was irrelevant.
Consequently the order passed by the High Court in the revision filed by the appellant was it final order within the meaning of article 134(1)(c).
[693 D H] Ramesh vs Patni, ; , relied on.
(iii) The High Court, before it certifies the case in cases not covered by clauses (a) and (b) of article 134(1)(c), must be satisfied that it involves some substantial question of law or principle.
Only it case involving something more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate under article 134(1) (c) The question in the revision petition before the High Court was whether the filing of a complaint against the appellant was expedient in the interest of justice.
This was a question of fact and therefore the grant of certificate was not justified.
[694 B F] Haripada Dey vs Slate of West Bengal, ; , and Babu State of Uttar Pradesh, relied on.
Per Bachawat and Mitter, JJ.
(dissenting) : Whatever test is applied,in order directing the filing of a complaint and deciding that there is a prima facie case for enquiry into an offence is not a final order.
It is merely a preliminary step in the prosecution and therefore and, interlocutory order.
As the order is not final, the High Court was not competent to grant a certificate under article 134(1)(c).
[695 B] section Kuppuswamy Rao vs The King , relied on.


judgement:
Appeal No. 495 of 1965.
Appeal by special leave from the judgment and decree dated December 22, 1959 of the Punjab High Court, Circuit Bench at Delhi in Regular First Appeal No. 78 D of 1953.
Rameshwar Dayal and A. D. Mathur, for the appellants.
Veda Vyasa,K. K. fain and H. K. Puri, for respondent No. 6.
The Judgment of the Court was delivered by Bhargava, J.
The first appellant, Messrs. Delhi Motor Com pany, is a partnership firm (hereinafter referred to as "the firm"), of which the other four appellants Nos. 2 to 5 are partners.
Respondent No. 6, New Garage Ltd., is a private limited company (hereinafter referred to as "the Company"), of which respondent 722 No. 1 was the Managing Director, and respondents Nos. 2 to 5 were members of the Board of Directors.
The firm brought a ' suit against the Company for possession of part of the building known as "Scindia House" situated in Connaught Circus, New Delhi, on the basis of an agreement of subleases Possession was claimed of a portion of the Show Room on the ground floor, of 1/2 portion of the Balcony, and another portion of the premises which were, in the year 1950, in the possession of Messrs. Kanwar Brothers Ltd. The case put forward by the firm was that the Company was the tenant of Scindia House and was in occupation of the Show Room and other parts of the building, while a, part of it was occupied by Messrs. Kanwar Brothers Ltd. as sub lessee of the Company.
According to the firm, the agreement to sub lease, or the sub lease on the basis of which possession was claimed by the firm from the Company, is evidenced by three documents, the first one of which is letter, Ext.
P. 1, dated 20th February, 1950, written by K. section Bhatnagar, appellant No. 2, on behalf of the firm, to U. A. Basrurkar, respondent No. 1, who was the Managing Director of the Company.
The second document is letter, Ext.
P. 2, dated 22nd February, 1950, written by respondent No. 1 Basrurkar to appellant No. 2 Bhatnagar; and the third document is Ext.
P. 3, which purports to be notes on agreement arrived at between Basrurkar and Bhatnagar on 22nd February, 1950.
The case of the firm was that, though these documents did not purport in so many words to be an agreement of sub lease.
to be granted by the Company to the firm, in substance and in fact, the agreement arrived at was of a sub lease in respect of the premises mentioned above.
Since, under the Delhi and Ajmer Merwara Rent Control Act 19 of 1947, if a sub lease had been granted by the Company to the firm without the consent of the landlord, the Company would have been liable to ejectment from the premises, the agreement was not made as directly evidencing a sub lease, so that the landlord should not have an opportunity of suing the Company for ejectment.
In February, 1950, when the agreement evidenced by these three documents was arrived at, respondent No. 1, U. A. Basrurkar as Director did not have the authority to enter into this transaction on behalf of the Company with the firm and, consequently on 22nd March, 1950, the Board of Directors of the Company, by a resolution Ext.
P. 9, authorised the Managing Director to enter into this transaction.
Thereafter, the firm came into possession of two portions of the leased property and started its business in them with effect from 1st April, 1950.
The two portions of the leased property, which came into the possession of the firm, were a portion of the ShowRoom on the ground floor and a half portion of the Balcony on the first floor.
The agreement contained in these letters and, 723 documents also required parties to carry out some other obligations and, according to the firm, it complied with them.
In order to avoid the, liability of the Company for ejectment under the Delhi and Ajmer Merwara Rent Control Act, 1947, the agreement was sought to be given the.
form of a partnership; and in order to enable the Company to enter into such a transaction, a special resolution Ext.
P. 4 was passed on 24th November, 1950 at an Extra ordinary General Meeting of the Share holders of the Company amending the Memorandum of Association of the Company.
This amendment was subsequently approved by the District Judge and was registered with the Registrar of Companies.
So far as the landlord is concerned, lie was not a party to these t ransactions, though, on 5th April, 1951, the landlord gave a letter Ext.
P. 22 recognising the possession of the firm, but he specifically stated in that letter that the firm would be a licensee and not a sub lessee.
One other term in the, agreement arrived at was that appellant No. 2, K. section Bhatnagar, was to be taken as a Director of the Company and he was in fact included in the Directors of the Company thereafter.
The further case of the firm was that when Messrs. Kanwar Brothers Ltd. vacated the portion of the premises which was included in the sub leases the Company did not give possession of that portion of the leased property to the firm and also started obstructing the use of those portions of the property by the firm of which the firm had secured possession by 1st April, 1950.
A stage came when the firm was completely dispossessed from the property ]eased and, ultimately, after giving notices, the firm instituted a suit on 18th June, 1952.
The principal prayer in the suit was for delivery of possession in respect of all the three portions of the leased property.
Then, there was a claim for damages to the extent of Rs. 10,000/ in respect of loss incurred on account of dispossession and obstruction in use of the leased property at the instance of the Company.
Injunctions were also sought restraining the Company from interfering with the rights of the firm and with their uninterrupted use of the leased property.
There were further prayers for other consequential injunctions which need not be described in detail.
On behalf of the Company and its Directors, the plea put forward was that there was no agreement of sub lease or a completed sub lease between the Company and the firm and that, in fact, all that took place were negotiations for entering into a partnership.
Even the agreement for partnership was never completed, so that the firm was not entitled to any relief at all.
The trial Court held that the contract evidenced by these documents was an agreement for a sub lease and, since this agreement did not require registration, the firm was entitled to the 724 reliefs claimed on the basis of this agreement.
The Company and its Directors appealed to the High Court of Punjab and that Court held that these documents constituted a completed lease or at least an agreement to lease falling within section 2(7) of the Indian Registration Act and, since the lease or the agreement to lease was evidenced by documents in writing and they were unregistered, the lease or the agreement to lease could not be enforced.
On this sole ground, the High Court allowed the appeal and dismissed the suit of the firm.
The firm has now come up in, appeal to this Court by special leave.
The first point urged on behalf of the firm was that, in this case, there was a completed sub lease, but it did not require registration for Iwo reasons.
The first reason advanced was that the lease was not evidenced by the documents Exts.
P. and P. 3 only, but was, in fact, completed subsequently when, after the resolution of the Board of Directors of the Company, the Company gave possession of the leased property to the firm on or about the 1st April, 1950.
The second reason was that, in any case, this lease was not a lease from year to year or for any term exceeding one year or reserving a yearly rent, so that section 107 of the was not applicable and registration was not compulsory.
These submissions fail, because the lease, as relied upon by the firm, has to be held to be a lease of immovable property for a term exceeding one year, and such a lease is fully governed by section 107 of the .
The firm itself came forward with the case that the rights that were being claimed were under a lease and the lease was in respect of immovable property consisting of the three portions of the Scindia House which have been mentioned above.
It was, however, urged that this lease was not for any fixed term at all and was for an indefinite period, so that it could not be held to be a lease from year to year either.
It was further submitted that yearly rent had not been reserved in respect of this lease.
Even these submissions were made on the basis that the terms of the lease have to be ascertained from the three documents Exts.
P. and P. 3 which were relied upon by the firm to claim the relief in the suit.
It appears to us that, if these documents are properly interpreted, an inference necessarily follows that the lease, if any, brought into existence by these documents was certainly for a period exceeding one year.
Since reliance was placed on these documents on behalf of the firm to urge that there was a completed lease, learned counsel for the firm was asked to point out the provision which fixed the rent payable in respect of the leased property.
The only provision, on which he relied to show that rent had, in fact, been agreed upon the fixed, was para 1 of Ext.
P. 3 which 725 contains notes on agreement, dated 22nd February, 1950.
That paragraph is as follows : "Profit share of party No. 1 would be 10% of net profit of New Delhi business only and will be settled at the end of the 1st closing of the financial year which would be 30th June, 1951.
" Accepting this submission that this paragraph lays down the rent payable, it is clear that, under it, the rent payable for the first time would be 10 % of the net profits earned by the firm in its New Delhi business up to 30th June, 1951.
The period would naturally begin on the date on which the lease commenced.
That date, according to the firm itself, was 1st April, 1950.
From these facts it follows that when the rent is to be paid for the first time, it would be an amount of 10% of the net profits earned by the firm in its New Delhi business between 1st April, 1950 and 30th June, 1951, and, naturally enough, the rent will be in respect of the same period.
This term, therefore, clearly laid down that the very first payment of rent was to be for a period of one year and three months, so that, even though so further period for the continuance of the lease after 30th June, 1951 was laid down, the lease at least made rent pay able for the first period of fifteen months.
The lease was, therefore, at least for a period of fifteen months and, consequently, for a period exceeding one year.
Section 107 of the was, thus, clearly applicable and such a lease could not have been validly made, except under a registered instrument.
Admittedly, there was no registration of the documents which constituted the lease and consequently, the firm could not claim any rights on the basis of this lease evidenced by unregistered documents.
Learned counsel tried to urge that, since in these documents no definite period for the lease was mentioned, we should hold that section 106 of the was applicable and the lease being in respect of immovable property for purposes other than agricultural or manufacturing must be deemed to be a lease from month to month.
We are unable to accept this submission, because none of the documents, on which reliance has been placed on behalf of the firm to prove the lease, contains any clause indicating that the tenancy was to be from month to month or the rent was payable monthly.
In fact, the indication from para 1 of Ext.
P. 3 quoted above is that the rent was to be payable annually, so that the contract itself seems to give an indication that it was to be a lease from year to year and annual rent was payable.
These circumstances, however, are immaterial, because we have already indicated earlier our 726 finding that this lease was at least for a minimum period of 15 months and, consequently, section 107 of the becomes applicable, irrespective of the question whether it was a lease from month to month or from year to year.
The High Court was, therefore, quite correct in holding that on the basis of this lease the reliefs claimed by the firm could not be granted to it.
In these circumstances, an argument was put forward on behalf of the firm that, though this contract to lease had not been registered, the firm could claim possession under it in view of the provisions of section 53A of the , because, in this case, the Company would be debarred from enforcing against the firm any right in respect of that property of which the firm had already taken possession, viz., part of the Show Room and a portion of the Balcony.
In our opinion, this argument proceeds on an incorrect interpretation of section 53A. because that section is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but do not give any right to the lessee to claim possession or to claim any other rights on the basis of an unregistered lease.
Section 53A of the is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor.
is interpretation of section 53A was clearly laid down by their Lordships of the Privy Council in Probodh Kumar Das and Others vs Dantra Tea Company Limited & Others(1).
Learned counsel for the firm, however, relied on a decision of the Allahabad High Court in Ram Chander vs Maharaj Kunwar and Others(2).
In that case.
the lessee, under a registered lease which was detective and (lid not comply with the requirement of section 107 of the , brought a suit against a subsequent purchaser of the house of the lessor on the allegation that the purchaser ha(], in collusion with the Municipal Board, procured the demolition or a portion of the house, and claimed a relief of perpetual injunction retraining the purchaser from demolishing the house or otherwise interfering with the lessee 's rights as such.
and for restoration of the demolished portion at the purchaser 's cost.
The High Court, in allowing the claim of the lessee, held "Now, in the present case, what is it that the plaintiff is attempting to do ? He is not attempting to set up a transfer which is he has not instituted a suit for the declaration of the validity of the transfer; (1) I.L.R. [1939] All.
(1) 66 I.A. 293.
727 he has not instituted a suit in which he claims an order against the defendant directing him to perform any convenant of the transfer.
What he is seeking to do is to debar the defendants from interfering with his possession into which he has entered with the consent of his transferor after the execution of a transfer in his favour.
He is, in other words, seeking to defend the rights to which he is entitled under section 53A of the .
The defendants Nos. 1 and 2 in demolishing part of the property of which the plaintiff had obtained possession were acting suo motu with the aid of the Municipal Board of Moradabad.
It is the defendants who are seeking to assert rights covered by the contract.
The plaintiff seeks merely to debar them from doing so; the plaintiff is seeking to protect his rights.
In a sense, in the proceedings he is really a defendant and we see nothing in the ;terms of section 53A of the to disentitle him from maintaining the present suit.
" Without expressing any opinion as to the correctness of the view taken by the Allahabad High Court, we have to point out that the interpretation put on section 53A of the even by that Court is of no assistance to the firm in the present case.
In this case, the firm is seeking to enforce rights under the unregistered lease and to seek a decree for possession against the lessor.
The Allahabad High Court in that case proceeded on the basis that the plaintiff of that suit was in the position of a defendant and was only seeking to protect his right,; by resort to the provisions of section 53A of the , so that no principle was laid down by the High Court that section 53A is available to a lessee otherwise than as a defence.
We are unable to accept the submission that the judgment in that case should be read as recognising a right of a lessee to enforce rights on the basis of an unregistered lease by resort to that provision, of law.
In, fact, if that case be interpreted as laying down such a principle, it must be held that it.
has been directly over ruled by the decision of the Privy Council in the case of Probodh Kumar Das and Others(1) and is not correct. 'Mat decision may be justified, if at all, on the basis that, though the lessee in that case was a plaintiff, he was actually seeking protection under section 53A of the by being in the real position of a defendant.
On the question whether a person, who sues as a plaintiff, may still be regarded as defending the rights 'Sought to be conferred upon him by an unregistered deed, we need express no opinion.
In the present case before us, the claim, which was put forward by the firm in the plaint, can by (1) 66 I.A. 293.
728 no means be construed as a mere defence of the firm 's rights.
What the firm is actually seeking to do is to enforce the rights under the lease and, in such a case, section 53A of the is clearly inapplicable.
Reliance was also placed on behalf of the firm on the deci sion of this Court in Ram Kumar Das vs Jagadish Chandra Deb Dhabal Deb and Another(1), in which case also, a registered Kabuliyat executed by the lessee did not comply with the requirements of section 107 of the , and on the facts of the case it was held that, though under the Kabuliyat the land was leased out for a period of ten years, the lease in fact must be presumed to be from month to month under section 106 of that Act.
The facts of that case were, however, quite different.
In that case, the terms of the lease were not ascertained from the Kabuliyat in which the period of lease was fixed at 10 years.
The terms of the lease were ascertained from other documents, including receipts for rent paid by the lessee to the lessor, and on the basis of that evidence it was found that a lease had come into existence under which rent was being paid monthly.
No such circumstances appear in the case before us.
In fact, it was at no stage pleaded and no evidence was led to show that, independently on the three documents Exts.
P. 1, .P. 2 and P. 3, there was material from which it could be inferred that a lease from month to month had come into existence between the firm and the Company.
No such point was urged either in the trial Court or before the High Court and no such finding of fact exists.
In these circumstances, section 106 of the would clearly be inapplicable, and the lease has to be held to be for a period exceeding one year for the reasons given by us above.
In the alternative, learned counsel for the firm urged that the firm was entitled to contend that these documents Exts.
P. 1 to P. 3 constituted an agreement in writing to lease the property in suit and could claim specific performance of this contract.
There are three reasons why we are unable to accept this submission.
The first is that, in the plaint itself, no specific performance of contract was claimed on behalf of the firm.
Though the pleadings included averments about this contract, the relief claimed was for a decree for possession, damages and injunctions.
These reliefs could only be claimed on the basis of a completed lease and could not be the reliefs in a suit for specific performance of a contract to lease.
The second reason is that, as mentioned by us earlier, the firm itself came forward with the case that the entire contract was not included within these three documents Exts.
P. 1 to P. 3, because, at the stage when (1) ; 729 these documents came into existence, the Managing Director of the Company had no authority to enter into such a contract on behalf of the Company and that the contract was only completed subsequently when the Board of Directors passed a resolution authorising the Managing Director to enter into such a contract and actual possession of part of the property was given on or about the 1st April, 1950.
The contract being a contract to lease immovable property and unregistered, specific performance of it could not be sought, except under section 27A of the Specific Relief Act.
That section, however, applies only if the entire contract is made in writing, while, according to the case put forward on behalf of the firm itself, ' the entire contract was not in writing.
The third reason why specific performance of the contract cannot be claimed by the firm under section 27A of the Specific Relief Act is that such a claim under that provision of law is only available to a lessee, when the lessee, in part performance of the contract, has taken possession of the property, or, being already in possession, continues in possession in part performance of the contract.
In the present case, the pleas put forward on behalf of the firm itself show that the firm never got possession of the entire property to which the contract related.
Possession was taken by the firm of only two items of property, while the firm never obtained possession of the third item of property which was in possession of Messrs. Kanwar Brothers ' Ltd. Clause (b) of section 27A can apply only if possession of the entire property, which is the subject matter of the contract of lease, has been taken by the lessee.
The pleadings in the plaint show that, even though the third item of property was vacated by M/s. Kanwar Brothers Ltd. in December, 1950, possession of that property was never obtained by the firm.
To meet this objection, it was urged by learned counsel on behalf of the firm that we should interpret section 27A of the specific Relief Act as being applicable even if possession of part of the property, which is the subject matter of the contract, is obtained by the lessee; but we are unable to accept this submission.
The language used makes it clear that possession must be obtained of the entire property to which the contract relates.
In this connection, it is significant to note that under section 53A of the , a transferor is barred from interfering with the rights of the transferee, even if the transferee gets possession of any part of the property sought to be trans ferred by the unregistered document of transfer.
That section specifically uses the expression "taken possession of the property or any part thereof", whereas the words used in section 27A of the Specific Relief Act are : "taken possession of the property".
The omission of the words "any part thereof" in section 27A of the Specific Relief Act when compared with the provision in section 53A of the 730 clearly brings out the position that the former section is only applicable when possession of the entire property, which is the subject matter of the contract, has been taken, while the latter section is made applicable even if the lessee takes possession of any part of the property.
Consequently, on the facts of the present case, the firm could not claim specific performance of the contract under section 27A of the Specific Relief Act, even if such a claim had been put forward in the plaint.
This alternative contention also, therefore, fails.
The appeal is, consequently.
dismissed, but, in view of the cirucumstances of this case and the conduct of the parties relating to the contract, we direct parties to bear their own costs of the appeal.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
Certain documents were executed between the appellant firm and the respondent company in respect of premises of which the latter was a tenant.
According to the appellant these documents were intended to effect a sublease of three portions of the premises in question though in order to avoid consequences under the Delhi and Ajmer Merwara Rent Control Act 10 of 1947 they apparently purported to create a partnership.
The firm was actually given possession of two of the three portions thus given to it.
After some time the firm was dispossessed by the company of the premises occupied by it and it therefore filed a suit claiming delivery of possession.
In defence the company contended that the documents relied upon by the firm did not evidence either a sub lease or a partnership.
According to it there were negotiations for a partnership which never fructified.
The trial court held that the documents executed by the parties evidenced an agreement for a sub lease and since the agreement did not require registration the firm was entitled to the reliefs claimed by it on the basis of the agreement.
In appeal by the company the High Court held that the documents constituted a completed lease of at least an agreement to lease falling within section 2(7) of the Indian Registration Act, and since the lease or the agreement to lease was evidenced by documents in Writing and they were unregistered, the lease or the agreement to lease could not be enforced.
On this sole ground, the High Court allowed the appeal and dismissed the suit of the firm, which thereupon, appealed to this Court.
HELD : (i) The three documents in question were relied on by the appellant firm itself as evidence of the lease and the terms thereof; the firm could not therefore be heard to say that these documents did not represent the completed lease and did not, for that reason, require registration.
[724 C H] (ii) According to the firm 's case based on the said documents rent in the first instance was payable to.
the company in the shape of 10% of the profits of the firm for the period 1st April 1950 to 30th June 1951.
Therefore the lease that came into existence through these documents was certainly for more than a year.
Section 107 of the was thus clearly applicable and such a lease could not have been validly made except under a registered instrument.
Admittedly there was no registration of the documents which constituted the lease, and, consequently, the firm could not claim any rights on the basis of this lease evidenced by unregistered documents.
[725 B F] (iii) Merely because the ]case was for an indefinite period and related to immovable property which was not used for agricultural or manufacturing purposes it could not be held to be a lease from month to month 721 to which section 106 of the was applicable.
There was nothing in the terms of the lease which showed that it was from month to month.
[725 F H] Ram Kumar Das vs Jagadish Chandra Deb Dhabal Deb & Anr. ; , distinguished.
(iv) Section 53A of the is only meant to bring about a bar against enforcement of rights by a lessor in respect of property of which the lessee had already taken possession, but does not give any right to the lessee to claim possession or to claim any other right on the basis of an unregistered lease.
Section 53A is only available PA a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor.
[726 C E] In the present case the claim which was put forward by the firm in the plaint, could by no means be construed as a mere defence of the firm 's rights.
What the firm was actually seeking to do was to enforce the rights under the lease and, in such a case, section 53A of the was clearly inapplicable.
[727 H 728 A] Probodh Kumar Das & Ors.
vs Dantmara Tea Company Ltd.,& Ors.
I.A. 293, relied on.
Ram Chander vs Maharaj Kunwar & Ors., I.L.R. 1939 All.
distinguished.
(v) Specific performances of the lease could not be enforced because (a) In the plaint no specific performance was claimed by the appellant, (b)The appellant 's own case was that the entire contract was not included in the three written documents, and section 27A of the Specific Relief Act under which only the contract could be enforced requires the whole contract to be in writing; (c) The difference between the words of section 53A of the and section 27A of the Specific Relief Act brings out clearly that the latter is applicable when the entire property under contract has been taken possession of by the lessee in part performance of the contract.
In the present case only two out of the three portions of the premises leased out to it were taken possession of by the appellant.
[728 G H, 729 H, 730 A B]


judgement:
Appeal No. 240 of 1967 Appeal from the judgment and order dated December 22, 1966 of the Delhi High Court in Letters Patent Appeal No. 1 of 1966.
Appellant in person.
Avadh Behari, for respondents Nos. 1 and 2.
P. Ram Reddy, and A. V. Rangam, for respondent No. 3.
Purshottam Trikamdas and 1.
N. Shroff, for respondent No. 4.
Purshottam Trikamdas and section P. Nayar, for respondent No. 5.
The Judgment of the Court was delivered by Shelat, J.
This appeal by certificate raises the question as to ,he scope of entries 77 and 78 in List I and entry 26 in List III of the Seventh Schedule to the Constitution.
The question arises in the following manner On a complaint by the Subordinate Judge that the appellant, while taking inspection of the Court record in an arbitration matter pending before his Court, had mutilated the copy of a notice in that record by wilfully tearing a portion thereof, the District Judge, Delhi filed a report against the appellant before the Delhi 711 State Bar Council for taking action under the , 25 of 1961 (hereinafter referred to as the Act).
The Disciplinary Committee of the said Council after hearing the appellant found him guilty of professional misconduct and ordered his suspension for one year under section 35 (3) (c) of the Act.
An appeal filed by the appellant under section 37 before the Bar Council of India failed.
Thereupon he filed an appeal against the said order under section 38 in this Court.
The appeal was placed for preliminary hearing and summarily rejected at that stage.
The appellant thereafter filed a writ petition in the High Court of Punjab (Delhi Bench) for quashing the said order of suspension, the order of the appellate authority confirming the said order and the order of this Court dismissing the appeal.
He thereafter filed a review petition against the dismissal of his appeal contending, inter alia, that rule 7 of O. 5 of the Supreme Court Rules, was ultra vires section 38 of the Act.
The review petition also was dismissed.
At the hearing of his writ petition, the appellant, inter alia, contended that section 38 of the Act was ultra vires article 138(2) of the Constitution inasmuch as the appellate jurisdiction conferred on this Court by section 38 fell under entry 26 in List III and that there being no special agreement between the Government of India and the Government of any State as required by clause 2 of article 138 sec.
38 was invalidly enacted.
He also contended that O. 5 r. 7 of the Supreme Court Rules under which the appeal was placed for preliminary hearing was Ultra vires section 38 as the said rule cut down and impaired his right of appeal under section 38.
Lastly, he contended that the decision of the Bar Council of India was bad for the several grounds alleged by him in his writ petition.
The learned Single Judge who heard the writ petition rejected these contentions and dismissed it.
As regards the first contention he held that clause 2 of article 1 38 did not apply and that it was clause 1 of that Article which was applicable as the subject matter of the fell under entry 77 of the Union List.
As to the other two contentions he held that rule 7 of the O. 5 was valid and did not contravene section 38; that the Bench before which the appeal came up for preliminary hearing had heard the appellant 's counsel and in addition had called for production of a document desired by him.
There was no affidavit by Counsel appearing for him that he was not heard on any point which he desired to contend.
He also held that the appellant had specifically raised the contention as to the vires of the said rule in his review petition and that that contention having been rejected, the appellant could not reagitate it in the writ petition.
He also held that the appellant was similarly not entitled to reagitate the question as to the merits of the said order of suspension.
the same having been considered and rejected at the time of the preliminary hearing of his appeal.
Aggrieved by the order of the learned Single Judge, 712 the appellant filed a Letters Patent Appeal.
At the hearing of that appeal the appellant 's counsel conceded that he could not raise, any contention on the merits of the case in view of this Court having disposed of those very contentions and that therefore he would confine his arguments only to the question of the vires of section 38.
The learned Judges who heard that appeal were of the view (1) that the Act was a composite piece of legislation.
that it did not, as held by the learned Single Judge, fall exclusively under entries 77 and 78 of List I but that it fell partly under those entries and partly under entry 26 of List 111; (2) that article 138 had no application as the jurisdiction to entertain and try appeals under section 38 was not 'further jurisdiction ' within the meaning of that Article; that the jurisdiction to hear such appeals was already vested in this Court under article 136 even without section 38 as the Bar Councils of Delhi and of India were quasi judicial tribunals and that therefore this Court had jurisdiction to entertain and try appeals against their orders; and (3) that the only effect of section 38 was that by providing for an appeal Parliament removed the hurdle of an appellant having to obtain special leave under article 136.
On this reasoning the learned Judges dismissed the contention as to the vires of section 38.
Dismissing the appeal the learned Judges observed : "There is no bar to the Parliament legislating with respect to jurisdiction and powers of the Supreme Court subject to the express provisions of the Constitution like articles 132 and 134.
When a provision for appeal to the Supreme Court is made in a statute, within the sphere covered by articles 132 to 136 it is not conferment of further power and jurisdiction as envisaged by article 138, such power would be exercisable by reason of entry 77 of List I".
In this appeal the appellant challenges the correctness of this view.
The question which falls for consideration is one of inter pretation of entries 77 and 78 of List I and entry 26 of List 111.
If it is held that it is entry 26 of List III under which the Act was enacted, clause 2 of article 138 would apply and in that case a special agreement with the State Government becomes a condition precedent to the enactment of section 38 of the Act.
In that case the difficulty would be to reconcile entries 77 and 78 of List I with entry 26 of the List III.
It is a well recognised rule of construction that the Court while construing entries must assume that the distribution of legislative powers in the three Lists could not have been intended to he in conflict with one another.
A general power ought not to 713 be so construed as to make a nullity of a particular power conferred by the same instrument and operating in the same field when by reading the former in a more restricted sense, effect can be given to the latter in its ordinary and natural meaning.
It is, therefore, right to consider whether a fair reconciliation cannot be effected by giving to the language of an entry in one List the meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it and equally giving to the language of another entry in another List a meaning which it can properly bear.
Where there is a seeming conflict between one entry in one List and another entry in another List, an attempt should always be made to avoid to see whether the two entries can be harmonised to avoid such a conflict of jurisdiction.
(C.P. & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938(1); Citizens Insurance Company of Canada vs Parsons (2) Bhola Prasad vs Emperor(3); Governor General in Council vs Province of Madras(4), and State of Bombay vs Balsara(5).
It is in the background of these principles of construction that we must proceed to examine the content of the various relevant entries dealing with the constitution and Organisation of courts and their jurisdiction and powers and the scheme envisaged thereunder.
Entries 77 and 78 of List I read as under : "77.
Constitution, Organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court) . persons entitled to practise before the Supreme Court." "78.
Constitution and Organisation (including vacations) of the High Courts . ; persons entitled to practice before the High Courts.
" Entry 95 of List I reads as follows "95.
Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction.
" Entry 65 of List II reads "65.
Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
" Entry 46 in List III reads "46.
Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
" (1) (2) [1881] 7 A.C. 96.
(3) (4) (1945] 72 I.A. 91.
(5)[1951] S.C.R. 68 ' ).
714 The scheme for conferring jurisdiction and powers on courts is (a) to avoid duplication of Courts, Federal and State Courts as.
in the Constitution of the United States, (b) to enable Parliament and the State Legislatures to confer jurisdiction on courts in respect of matters in their respective lists except in the case of the Supreme Court where the legislative authority to confer jurisdiction and powers is exclusively vested in Parliament.
In the case of the Concurrent List both the legislatures can confer jurisdiction and powers on courts except of course the Supreme Court depending upon whether the Act is enacted by one or the other.
Entry 3 in List 11 confers legislative powers on the States in the matter of "Administration of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts; officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.
" It is clear that except for the constitution and the Organisation of the Supreme Court and the High Courts the legislative power in the matter of administration of justice has been vested in the State Legislatures.
The State Legislatures can, therefore enact laws, providing for the constitution and organisation of courts except the Supreme Court and the High Courts and confer jurisdiction and powers on them in all matters, civil and criminal, except the admiralty jurisdiction.
It would, of course, be open to Parliament to bar the jurisdiction of any such court by special enactment in matters provided in Lists I and III where it has made a law but so long as that is not done the courts established by the State Legislatures would have jurisdiction to try all suits and proceedings relating even to matters in Lists I and 111.
Thus, so far as the constitution and organisation of the Supreme Court and the High Courts are concerned, the power is with Parliament.
As regards the other courts, Entry 3 of List 11 confers such a power on the State Legislatures.
As regards jurisdiction and powers, it is Parliament which can deal with the jurisdiction and powers of the Supreme Court and the admiralty jurisdiction.
Parliament can confer jurisdiction and powers on all courts in matters set out in List I and List III where it has passed any laws.
But under the power given to it under entry 3 in List 11, a State Legislature can confer jurisdiction and powers on any of the courts except the Supreme Court in respect of any statute whether enacted by it or by Parliament except where a Central Act dealing with matters in Lists I and II otherwise, provides.
That these entries contemplate such a scheme was brought out in State of Bombay vs Narothamdas(1), where it was contended that the Bombay City Civil Court Act, 40 of 1948, constituting the said Civil Court as an additional court was ultra vires the Provincial Legislature as it conferred jurisdic (1) ; 715 tion on the new court not only in respect of matters in List 11 of the Seventh Schedule of the Government of India Act, 1935 but also in regard to matters in List I such as promissory notes in item 8 of List I, Rejecting the contention it was held that the impugned Act was a law with respect to a matter enumerated in List 11 and was not ultra vires as the power of the Provincial Legislature to make laws with respect to "administration of justice" and ."constitution and Organisation of all courts" under item 1 of List II was wide enough to include the power to make laws with regard to the jurisdiction of courts established by the Provincial Legislature; that the object of item 53 of List I, item 2 of List 11 and item 15 of List III was to confer such powers on the Central and the Provincial Legislatures to make laws relating to the jurisdiction of courts with respect to the particular matters that are referred to in List I and II respectively and the Concurrent List, and that these provisions did not in any way curtail the power of the Provincial Legislature under item 1 of List 11 to make laws with regard to jurisdiction of courts and to confer jurisdiction on courts established by it to try all causes of a civil nature subject to the power of the Central and Provincial Legis latures to make special provisions relating to particular subject,,.
referred to in the Lists.
It may be mentioned that item 53 in ,List 1, items 1 and 2 in List 11 and item 15 in List III in the Seventh Schedule to the 1935 Act more or less correspond to entries 77, 78 and 95 in List 1, entries 3 and 65 in List 11 and entry 46 in List III of the Seventh Schedule to the Constitution.
This being the scheme with regard to the constitution and Organisation of courts and their jurisdiction and powers let us next proceed to examine entry 26 in List III.
Entry 26, which is analogous to Item 16 in List III of the Seventh Schedule to the 1935 Act, deals with legal, medical and other professions but is not concerned with the constitution and Organisation of courts or their jurisdiction and powers.
These, as already stated, are dealt with by entries 77, 78 and 95 in List 1, entries 3 and 65 in List II and entry 46 in List III Enactments such as the , the , the , the and the , all Central Acts, would fall under the power to deal with professions under entry 26 of List III in the Seventh Schedule to the Constitution and item 16 of List III of 1935 Act.
It will, however, be noticed that entries 77 and 78 in List I are composite entries and deal not only with the constitution and Organisation of the Supreme Court and the High Courts but also with persons en titled to practise before the Supreme Court and the High Courts.
The only difference between these two entries is that whereas the jurisdiction and powers of the Supreme Court are dealt with in 716 entry 77, the jurisdiction and powers of the High Courts are dealt with not by entry 78 of List I but by other entries.
Entries 77 and 78 in List I apart from dealing with the constitution and Organisation of the Supreme Court and the High Courts also deal with persons entitled to practise before the Supreme Court and the High Courts.
This part of the two entries shows.
that to the extent that the persons entitled to practise before the Supreme Court and the High Court are concerned, the power to legislate in regard to them is carved out from the general power relating to the professions in entry 26 in List III and is made the exclusive field for Parliament.
The power to legislate in regard to persons entitled to practise before the Supreme Court and the High Courts is thus excluded from entry 26 in List III and is made the exclusive field for legislation by Parliament only [Re : Lily Isabel Thomas(l) and also Durgeshwar vs Secretary, Bar Council, Allahabad 2 ) ].
Barring those entitled to practise in the Supreme Court and the High Courts, the power to legislate with respect to the rest of the practitioners would still seem to be retained under entry 26 of List III.
To what extent the power to legislate in regard to the legal profession still remains within the field of entry 26 is not the question at present before us and therefore it is not necessary to go into it in this appeal.
The was passed to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All India Bar.
Section 2(a) and (i) define an 'advocate ' and a 'legal practitioner '.
Chapter II deals with the establishment of Bar Councils and their functions, viz., to admit persons on its roll, to prepare and maintain such roll, to entertain and determine cases of misconduct against advocates on its roll etc.
Section 7 lays down the functions of the Bar Council of India, that is, to prepare and maintain a common roll of advocates, to lay down the standard% of professional conduct and etiquette, to lay down procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council, to exercise general supervision and control over State Bar Councils etc.
Chapter III deals with admission and enrolment of advocates.
Section 16(1) provides that there shall be two classes of advocates, senior advocates and other advocates.
Chapter IV deals with the right,to practise.
Section 29 provides that subject to the provisions of this Act and the rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, the advocates.
Section 30 provides that subject to the provisions of this Act, every advocate whose name is entered in the common roll shall be entitled as of right to practise throughout the terri (1) ; ,236.
(2) A.I.R. 1954 All.
717 tories to which this Act extends in all courts including the Supreme Court and before any tribunal or any other authority before whom such advocate is by or under any law for the time being in force entitled to practise.
Chapter V deals with the conduct of advocates.
Section 35 lays down that where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
The disciplinary committee has to fix a date for the hearing of the case and give a notice thereof to the advocate concerned and to the Advocate General of the State.
(3) provides that such committee after giving the advocate concerned and the Advocate General an opportunity of being heard, may make, inter alia, an order suspending the advocate from practice as it may deem fit.
Similar powers are also conferred on the Bar Council of India under section 36 in relation to an advocate on the common roll.
Section 37 gives a right of appeal to the Bar Council of India by any person aggrieved by an order of the disciplinary committee of a State Bar Council.
Section 38 confers a right of appeal to the Supreme Court on any person aggrieved by an order by the disciplinary committee of the Bar Council of India under section 36 or section 37 and empowers the Supreme Court to pass such orders thereon as it deems fit.
The object of the Act is thus to constitute one common Bar for the whole country and to provide machinery for its regulated functioning.
Since the Act sets up one Bar, autonomous in its character, the Bar Councils set up thereunder have been entrusted with the power to regulate the working of the profession and to prescribe rules of professional conduct and etiquette, and the power to punish those who commit breach of such rules.
The power of punishment is entrusted to the disciplinary committees ensuring a trial of an advocate by his peers.
Sections 35, 36 and 37 lay down the procedure for trying complaints, punishment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils.
As an additional remedy section 38 provides a further appeal to the Supreme Court.
Though the Act relates to the legal practitioners, in its pith and substance it is an enactment which concerns itself with the qualifications, enrolment, right to practise and discipline of the advocates.
As provided by the Act once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practise in all courts including the Supreme Court.
As aforesaid, the Act creates one common Bar, all its members being of one class, namely, advocates.
Since all those who have been enrolled have a right to practise in the Supreme Court and the High Courts, the Act is a piece of legislation which deals with persons entitled to practise before the Supreme Court and the High Courts.
There L3 Sup.
CI/68 2 718 fore the Act must be held to fall within entries 77 and 78 of List I.
As the power of legislation, relating to those entitled to practise in the Supreme Court and the High Courts is carved out from the general power to legislate in relation to legal and other professions in entry 26 of List 111, it is an error to say, as the High Court did, that the Act is a composite legislation partly falling under entries 77 and 78 of List I and partly under entry 26 of List 111.
In this view, the right of appeal to this Court under section 38 of the Act creates a jurisdiction and power in relation to a matter failing under entries 77 and 78 of the Union List and the Act would, therefore, fall under clause I and not clause 2 of article 138.
The argument that section 38 falls under article 138(2) and is invalid on account of its having been enacted without a special agreement with the State Government is, therefore, without merit.
As regards the validity of rule 7 of O. 5 the contention, as already pointed out, was raised and rejected in the said review petition filed by the appellant.
The contention having thus been concluded could not obviously be raised in the writ petition filed by the appellant, nor would he be entitled to any writ or order from the High Court as against the said decision.
The rule, in any event, merely provides for the placing of an.
appeal filed under section 38 for a preliminary hearing and enables this Court to dismiss at that stage an appeal if it finds it has no substance.
The appellant in such an appeal is heard; if the court finds that there is nothing in the appeal, the court declines to issue notice on the opposite side and disposes of the appeal there and then.
Section 38 confers no doubt a right of an appeal on a person aggrieved by an order passed under sections 36 and 37 and the appellant does not have to obtain any special leave under article 136.
But the fact that under rule 7 the appeal is placed for preliminary hearing and is liable to be disposed of at that stage does not mean that the content of the right of appeal under section 38 is in any way curtailed as the party filing the appeal has to be heard on all points raised by him therein.
There is, therefore, no substance in the argument that rule 7 contravenes section 38, and is therefore ultra vires the section.
On the express terms of article 145(1) (b), the rule is within the rule making power of this Court as it merely lays down how and in what manner an appeal filed under section 38 is to be dealt with and does not deal with or affect the right of appeal.
The validity of the rule cannot, therefore, be impeached.
The decision in Prem Chand Carg vs Exercise Commissioner (1) cannot assist the appellant.
In that decision rule 12 (1) [1963] Supp. 1 S.C.R. 885. 719 of O. xxxv of the Supreme Court Rules was declared void in so far as it related to the furnishing of security on the ground that the right to move the, Supreme Court under article 32 was absolute and the rule by providing security for costs impaired such an absolute right.
Furnishing of security in the case of persons without means to do so would obviously obstruct such persons from vindicating their rights under article 32 and would, therefore, curtail the right under that Article.
That obviously is not so in the case of the rule with which we are concerned in this appeal.
The contention, therefore, that rule 7 curtails the right of appeal under section 38 or contravenes that section must be rejected.
The appellant cited a number of authorities but it is not necessary to deal with them as they have no bearing on the questions before us.
He also tried to question the correctness of the order passed against him by the Bar Council of India but we did not allow him to reagitate it as it stood concluded on the dismissal of the appeal and the review petition filed by him in this Court.
The appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
The appellant filed a writ.
petition in the High Court for quashing, (a) the order of suspension passed against him by the State Bar Council under s.4.
35 of the , (b) the order of the Bar Council of .India in appeal under section 37 of the Act, confirming the order of suspension, and (c) the order of this Court summarily rejecting his appeal to this Court under section 38, under O.V., r, 7 of the Supreme Court Rules, 1966.
He contended that : (1) the jurisdiction conferred on this Court by section 38 related to a matter under Entry 26 of List III of the Constitution, that it therefore fell under article 138(2), and as there was no special agreement between the Government of India and the Government oaf a State as required by article 138(2), section 38 was not validly enacted; and (2) O. 5, r. 7 of the Supreme Court Rules under which the appeal was placed for preliminary hearing was ultra vires section 38, as the rule cut down and im paired the right of appeal under the section.
The writ petition was dismissed.
In appeal to this Court, HELD : (1) While Entry 26 of List III deals with the legal, medical and other professions, Entry 77 of List I, deals with the constitution, organisation, jurisdiction and powers of the Supreme Court, and also with persons entitled to practise before the Supreme Court.
Since there is a seeming conflict between the two entries they have to be harmonised by reading the, general power in Entry 26 in a restricted sense.
That is, the power to legislate in regard to persons entitled to practise before the Supreme Court under Entry 77 of List I should be held to be carved out from the general power relating to the professions in Entry 26 of List III, and made the exclusive field of Parliament.
[715 E F, H; 716 A C] The object of the is to constitute one common bar for the whole country and to provide machinery for its regulated functioning Though the Act relates to legal practitioners, in its pith and substance it is an enactment dealing with the qualifications, enrolment, right to practise and discipline of Advocates.
Since the Act provides that once a person is enrolled by any State Bar Council he becomes entitled to practise in all court , including the Supreme Court, the Act is a piece of legis lation dealing with persons entitled to practise before the Supreme Court.
Therefore, the Act, including the right of appeal to this Court under section 38, deals with a matter relating to Entry 77 of List I and falls under article 138(1) and within the exclusive field of Parliament.
The Act is not 710 a composite legislation partly failing under Entry 77 of List I and partly tinder Entry 26 of List 111.
It does not fall under article 138(2) and a special agreement with a State Government, is therefore not necessary.
[717 E, F H; 718 A C] State of Bombay vs Balsara, ; , State of Bombay V. Narothamdas, ; and In re : Lily Isabel Thomas; , followed.
C. P. & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 , Citizens Insurance Co. of Canada vs Parsons, [1881] 7 A.C. 96, Bhola Prasad vs Emperor, , G. G. in Council vs Province of Madras, (1945) 72 ].A. 91 and Durgeshwar vs Secretary, Bai Council, Allahabad, A.I.R. 1954 All. 728, referred to.
(2) On the express terms of article 145(1)(b) of the Constitution, 7 of O. 5 of the Supreme Court Rules is within the rule making power of this Court, as it merely lays down how and in what manner an appeal filed under section 38 is to be dealt with and does not deal with or affect the right of appeal.
The fact that under the rule the appeal is placed for preliminary hearing and is liable to be disposed of at that stage does not mean that the content of the right of appeal under the section is in any way curtailed, because, the party filing the appeal is heard on all points raised by him even at that stage.
[718 F M] Prem Chand Garg vs Excise Commissioner, [1963] Supp. 1 S.C.R. 885, distinguished.