RAJA SHATRUNJI Vs. MOHAMED AZMAT AZIM KHAN

JUDGEMENT

(1.) WITH great respect to my brother Beg I regret I am unable to agree with his view that it is for us to decide whether an appeal lies to the Supreme Court under Article 133 of the Constitution or not. The Article occurs in the Chapter headed as "The Union Judiciary" and deals with the jurisdiction of the Supreme Court and not with the jurisdiction of a High Court in respect of any matter. The opening words "an appeal shall lie to the Supreme Court from any judgment, decree or final order" are addressed to the Supreme Court; the Supreme Court must entertain an appeal from any judgment, decree or final order if the condition precedent mentioned in the Article, viz. the possession by the appellant of one of the four certificates mentioned in Clauses (a), (b) and (c) granted by the High Court is fulfilled. It is elementary that the question of jurisdiction is for the Court, the jurisdiction of which is invoked and not for any other court. In Rosen-blatt v. American Cyanamid Co., 15 LE (2nd) 39 the Supreme Court of the United States held that it was its duty to decide whether the order from which an appeal was preferred to it was a final order and the appeal was competent, even though no question of its jurisdiction was raised by the parties. Goldberg, J. said at page 42 that "although neither of the parties has mooted the question, it goes to the jurisdiction of this Court and must be considered." I find myself unable to agree with my learned brother that the words "any judgment, decree or final order" govern the word "certifies"; they cannot be divorced from the preceding word "from", are to be read with the words "an appeal shall lie" and cannot possibly be read with the word "certifies". What the High Court can certify is stated in the Article; it is that the amount or value of the subject-matter is of a certain amount or that the judgment, decree or final order involves some claim or question respecting property of a certain value or that the case is a fit one for appeal or that the appeal involves a substantial question of law. It is not at all required to certify that it is a judgment, decree or final order from which the appeal is sought. Even in respect of the certificate mentioned in Clause (b) the essence of it is that some claim or question respecting property of certain valuation is involved in its decision and not that its decision amounts to a judgment, decree or final order. What is to be certified is the amount of the property involved and not the decision being a judgment, decree or final order. There would have been no sense in requiring a certificate about the decision being a judgment, decree or final order under Clause (b) when it was not required under Clause (a). The distinction between the circumstances mentioned in Clauses (a) and (b) does not justify the necessity of a certificate regarding the decision being a judgment, decree or final order In one case and not in the other. In a certificate the High Court has not to state at all that its decision is a judgment, decree or final order.

(2.) THERE is no law laid down in the Constitution or in any Act or Rules as to when a High Court can grant a certificate or cannot grant it. Of course a certificate can be granted Only if the facts to be certified exist and cannot be granted if they do not. No law supplies the answer to the question whether when the facts exist the High Court must grant the certificate or may refuse to grant for some reason. The Article may be interpreted as entrusting a High Court with the duty of granting a certificate and it may be said that if the facts exist the certificate must be issued. Since it is a matter of a right to appeal and it cannot be denied arbitrarily the certificate must be issued if the facts exist and cannot be withheld. So regardless of the question whether there is a judgment, decree or final order or not the certificate must be issued. If a certificate under Clause (b) is issued it may contain the recital that its judgment, decree or final order "involves directly....... value" but it is not bound to certify that it is a judgment or is a decree or is a final order and the certificate can be that its decision "involves directly..... value".

(3.) NO appeal lies from an order of a High Court granting or refusing a certificate. Once there is a decision amounting to a judgment, decree or final order of a High Court in a civil proceeding and the High Court has given one of the certificates there is an absolute right of appeal to the Supreme Court; the words are "an appeal shall lie". Consequently if the Supreme Court finds that the High Court's decision was a judgment, decree or final order and the appellant possesses any of the certificates it cannot refuse to entertain the appeal. It follows that it cannot go into the merits of the certificate; the certificate is binding upon it. In some cases the Supreme Court has cancelled a certificate granted by a High Court but done so without going into the question of its jurisdiction to do so. It has not discussed the matter at all and has not laid down in so many words that it has jurisdiction over the contents of a certificate. The whole object behind the rule that an appeal lies if a certain certificate is granted by the High Court is to prevent the Supreme Court's spending its own time and labour in deciding whether leave should be granted for an appeal or not. If it had the jurisdiction to go into the merits of a certificate the object behind the provision would be defeated. If it was intended that the Supreme Court could go into the merits of a certificate no useful purpose was to be served by the High Court's granting a certificate; no useful purpose was to be served by the Supreme Court's and the High Court's going into the same matter. If the Supreme Court had jurisdiction to go into the merits of a certificate it should also have the jurisdiction to go into the merits of refusal to grant a certificate but admittedly no such jurisdiction is vested in it. It is because of this fact that there is a provision for special leave in Article 136; if a High Court refuses a certificate the prospective appellant can approach the Supreme Court for its special leave.