HAJI SALEH MOHAMMED AHMED SAIT Vs. MENAYATULLA MEKHRI

JUDGEMENT

(1.) This is an application under Article 133(1)(a); (b) and (c) of the Constitution of India for the issue of a certificate to prefer an appeal to the Supreme Court against the decision of this Court to R. A. No. 120 of 1950-51. The District Court C. & M. Station, Bangalore, dismissed the suit filed by tome of the present Respondents under Section 92 of the Code of Civil Procedure for the formulation of a scheme for the management of an institution known as Jumma Masjid, situated in the Civil Station, Bangalore in supersession of the scheme previously framed by that Court. The plaintiffs who purported to represent the Sunni Muslim Community of the Civil Station contended that the whole of that community was interested in the mosque while the previous scheme vested its management only in the representatives of one section of that community, namely, Cutchi Memons. The defendants who belonged to the Cutebi Memon section of the community resisted the suit claiming exclusive right to the management of the mosque. The District Judge in substance upheld the defendants' contention as mentioned above and dismissed the suit. This Court came to the conclusion that the whole of the Sunni Muslim community was interested in the mosque, set aside the decision of the District Court and directed that a new scheme should be framed and remitted the case to the District Court for the formulation of a scheme.

(2.) The main point for consideration in this petition is whether the decision of this Court is a 'judgment, decree or final order" as Contemplated under Article 133(1) of the Constitution as urged by the Petitioners or whether it is essentially 'interlocutory' in character as urged by the contesting Respondents, It is not disputed by the Petitioners that in form the decision is not final and that further proceedings have to take place for the disposal of the suit, but it is urged that the main and substantial matter in controversy was whether the Cutchi Memons had the exclusive right of management of the institution and as this matter has been set at rest by the decision of this Court the decision is a final one and that ail that has to follow is purely of an ancillary character. On the other hand it is urged for the other side that the main object of the suit was the formulation of a scheme which is yet to be framed, that this court's decision that the Cutchi Memons were not exclusively entitled to the management of the mosque settled only one of the matters necessary for the formulation of a scheme even though it might be an important matter and that therefore the decision cannot be regarded as a final one.

(3.) A number of decisions have been cited by the learned Counsel on both the sides beginning with that reported in Rahimbhoy Haribhoy v. C. A. Turner, ILR 15 Bom 155. It seems to be sufficient, however, to refer to the decision reported in Abdul Rahman v. D. K. Cassim & Sons, AIR 1933 PC 58 and some of the later decisions since, as pointed out in the decision, the provisions of the earlier Code of Civil Procedure corresponding to Section 109 of the Code of 1908 were somewhat differently worded. The decision in AIR 1933 PC 58 referred to and explained the principle laid down by the Privy Council in Firm Ramchand Manjimal v. Firm Goverdhandas Vishandas Ratanchand ILR 47 Cal 91S : (AIR 1920 PC 86). It was statcd:" 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 ..... The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of parties. It no doubt decided an important and even a vital issue in the case, but it loft the suit alive and provided for its trial in the ordinary way." The Federal Court in the case reported in Mahomed Amin Brothers Ltd. v. Dominion of India, AIR 1950 FC 77 adopted the above view and also held that the definition of the words judgment, decree or final order' in Section 205(1) of the Government of India Act (corresponding to Article 133(1)) make it clear that no appeal is provided against an "interlocutory judgment or order'.