SWAMI RAJRAJESHWARASHRAM Vs. SHRI SHARDA PEETH MATH

JUDGEMENT

(1.) This is an application under Section 109 (a) of the Civil P. C. for leave to appeal to the Privy Council. We have treated this application as an application for leave to appeal under Section 109, cl, (a), and also under Clause (c), though no specific prayer is made in the application for leave to appeal under Section 109 (c), Civil Procedure Code.

(2.) This is a dispute between two rival claimants to the property which is in the possession of the District Judge under Regulation VIII of 1827. The lower Court held that the suit was barred by limitation. On appeal, this Court came to a contrary conclusion and remanded the suit for decision on the merits. The question, therefore, in this application is whether an order reversing the decision of the lower Court on the point of limitaion and remanding the case for decision on the merits is a "final order" passed on appeal by the High Court within the meaning of Section 109 (a) of the Civil P. C..

(3.) Several cases were cited before us. It, however, appears from the judgments of the Privy Council in Rahimbhoy Habibhoy V/s. Turner (1890) L.R. 18 I.A. 6, Syed Muzhar Husein V/s. Bodha Bibi (1894) L.R. 22 I.A. 1, and Ramchand Manjimal V/s. Goverdhandas Vishandas Ratanchand, s.c. 22 Bom. L.R. 606, P.C. that an order comprising the decision of the High Court upon a cardinal issue in a suit, that issue being one that goes to the foundation of the suit, and one that can never, while that decision stands, be disputed again, is a final order for the purposes of appeal to His Majesty in Council, notwithstanding that there may be subordinate inquiries yet to be made in disposing of the suit. The cardinal point in the suit is distinguishable from a preliminary point, e. g., misjoinder, limitation. Res judicata, which excludes evidence of essential facts, and an order overruling the preliminary point renders remand necessary for determination of those essential facts. The order is final if it finally disposes of the rights of the parties.