SARATMANI DEBI Vs. BATA KRISHNA BANERJEE

JUDGEMENT

(1.) We are invited to grant a certificate to the appellant that as regards the value of the subject-matter and the nature of the questions involved in this appeal, the requirements of Section 110 of the Code of 1908 are satisfied. The respondent commenced the suit out of which the present proceeding arises, in the Court of the Subordinate Judge of Hooghly and valued the relief claimed at Rs. 1,500. The defendant took exception to the valuation of the suit and further contended that the suit was not maintainable in view of the provisions of Section 244 of the Code of 1882. The Subordinate Judge dismissed the suit on the ground that it was barred by Section 244, and in support of this view relied upon the case of Jogemaya Dassi V/s. Thackomoni Dassi 24 C.473. The plaintiff then appealed to the District Judge. The defendant took a preliminary objection that the appeal was incompetent and could be entertained only by the High Court. The objection was overruled and the appeal heard, with the result that the District Judge set aside the decree of the first Court on the ground that Section 244 did not operate as a bar, and remanded the case under Section 562 of the Code of 1882. The defendant then appealed to this Court. On the 3 March, 1905, the appeal was allowed and the suit dismissed by Maclean, C.J. and Holmwood, J. Subsequently this judgment was re-called and the case re-argued with the result that on the 21 February, 1908, Maclean, C.J. and Coxe, J. dismissed the appeal Saratmani Debi V/s. Bata Krishna 35 C. 1100; 12 C.W.N. 614. The appellant alleges that on her behalf a question was argued before this Court that the District Judge had no jurisdiction to entertain the appeal presented to him and that for some reason not explained, this objection was not considered as appears from the judgment. She now applies for leave to appeal to His Majesty in Council. It is not disputed, and in our opinion it cannot be successfully disputed that the value of the subject-matter of the suit in the Court of first instance was upwards of Rs. 10,000 and that the order of this Court involves a question to property of like value. There is also no room for doubt that the proposed appeal involves substantial questions of law. It has been argued, however, on behalf of the respondent that the order in question which affirms the order of remand made by the District Judge is not a final order within the meaning of Section 109(a) of the Code of 1908. In support of this view reliance has been placed upon the cases of Habibunnissa v. Munwarunnissa 25 A. 629; Tirunarayana V/s. Gopalasami 13 M. 349 and Radhakishen v. Collector of Jaunpore 28 I.A. 28; 28 A. 230 and reference has also been made to the fact that the Judicial Committee refused an application for special leave to appeal to Her Majesty in Council in Raja Tusaddak Rasul V/s. Furzand Husain 1 Oudh Cases 205. In support of the appeal, reliance has been placed, on the other hand, upon the cases of Rahimbhoy Habibbhoy v. Turner 18 I.A. 6; 15 B. 155; Saiyad Muzhur Hossein V/s. Bodha Bibi 22 I.A. 1;17 A. 112; Ananda Gopal V/s. Nafar Chandra Pal 35 C. 618; 8 C.L.J. 168; 12 C.W.N. 545 and reference has also been made to the cases of Radha Raman V/s. Pran Nath 28 C. 475 and Khagendra Nath v. Pran Nath 29 I.A. 99; 29 C. 395. In our opinion the order against which the appellant asks for leave to appeal is a final order within the meaning of Section 109 of the Code.

(2.) The term final oder within the meaning of Clauses (a) and (b) of the section denotes an order which finally decides any matter directly at issue in the case in respect of the rights of the parties. It cannot be affirmed as an inflexible rule of universal application that an order of remand is not a final order for the purposes of the section because it is in the nature of an interlocutory order in the suit. The answer to the question, whether an order is final or not, must depend upon its contents. If it decides in effect finally the cardinal point in the suit, if it decides an issue which goes to the foundation of the suit, and, therefore, is an order which can never, while the decision stands, be questioned again in the suit, it is final within the meaning of the section, notwithstanding that there may be subordinate enquiries to be made. This view is amply supported by the cases upon which reliance has been placed on behalf of the appellant. In Rahimbhoy V/s. Turner 18 I.A. 6; 15 B. 155 the appeal was directed against a preliminary decree of the High Court of Bombay which affirmed the liability of the defendants in the suit to render accounts and gave various directions as to the extent and mode in which the accounts were to be taken in view of the final decree in the suit. The High Court held that the decree was not final within the meaning of Section 595 of the Code of 1882 and refused to grant the necessary certificate. Rahimbhoy Hubibbhoy V/s. Turner 14 B. 428. The Judicial Committee held that the decree was final on the ground that it established the liability of the defendants to account, although, as Lord Macnaghten observed, the decree in question was not the last decree. Again in Saiyad Muzhur Husain Bodha Bibi 22 I.A. 1;17 A. 112, the Judicial Committee held that although every order of remand under Section 562 of the Code of 1882 might not be a final order, yet where an order of this description decides the cardinal point in issue in the suit, for instance, the validity of a will, it is final, notwithstanding that the case is remanded for decision on subordinate points. A similar view was taken by this Court in Anando Gopal V/s. Nafar Chandra Pal 35 C. 618; 8 C.L.J. 168; 12 C.W.N. 545 in which it was held that where an order of remand decided questions which went to the very root of the matter,--in the particular instance, the question whether certain encumbrances had been effectively annulled by a notice under Section 167 of the Bengal Tenancy Act--the order was a final order although the case was remanded to be tried out on other issues. The cases of Radha Raman V/s. Pran Nath 28 C. 475 and Khagendra V/s. Pran Nath 29 I.A. 99; 29 C. 395 are closely similar to the case now before us. In each of these cases, the suit was brought to set aside an ex parte decree and an execution sale based thereon on the allegation of fraud. The suit was defended on the ground that it was barred under Secs.13 and 244 of the Code of 1882. The Court of first instance allowed this objection and dismissed the suit. This Court Pran Nath Roy V/s. Mohesh Chundra Maitra 24 C. 546 held that the suits were maintainable, that Secs.13 and 244 were no bar thereto, and, in this view, set aside the decrees of dismissal and remanded the cases under Section 562 of the Civil Procedure Code for trial of the issues on the merits. Appeals to Her Majesty in Council were preferred against these orders of remand, and no suggestion appears to have been made that the orders in controversy were not final within the meaning of Section 596 of the Code of 1882. The appeals were subsequently heard by the Judicial Committee and the orders of this Court were affirmed. The cases relied upon by the respondents are clearly distinguishable. In Rai Radhakishen v. Collector of Jaunpore 28 I.A. 28; 28 A. 230 the order of remand was made in an appeal against an order refusing to set aside an ex parte decree. The High Court of Allahabad held that the proceeding under Section 108 had not been properly adjudicated upon by the subordinate Court, as the application under that section had been refused without any determination that the defendants had been prevented by sufficient cause from appearing and maintaining his defence. The effect of the order of remand, therefore, as was pointed out by Lord Robertson, was, not to set aside the ex parte decree but merely to direct further enquiry on the basis of the application under Section 108. In other words, it was not the suit which was remanded, as the decree had not been set aside, but it was rather the application under Section 108 which was remanded for further investigation. Under these circumstances, their Lordships pointed out that the order in question was not a final order but apparently an interlocutory order directing procedure. In the case of Tusaddak Rasul V/s. furzand Hussain 1 Oudh Cases 205 the Court of first instance dismissed the suit as barred by limitation. On appeal, the Court of the Judicial Commissioner found that the suit was not so barred and remanded the case under Section 562 of the Code of 1882. The defendant then applied for leave to appeal to Her Majesty in Council. The Court of the Judicial Commissioner refused to grant leave on the ground that the question of limitation was only a subordinate question in the case and that the cardinal points were the question of legitimacy of one of the parties to the suit and the genuineness and validity of a Will executed by his father. It is obvious from an examination of the judgment of the Judicial Commissioner that no general proposition that an order of remand is not a final order within the meaning of Section 595 of the Code of 1882 was intended to be laid down. An application was then made for special leave to appeal to Her Majesty in Council, and it was rejected by their Lordships of the Judicial Committee on the 19 July 1898. No reasons were given for the refusal to grant special leave, and the inference cannot legitimately be drawn that the Judicial Committee intended to affirm the grounds on which the Judicial Commissioner had refused to grant leave. In fact as has been explained by their Lordships in Moti Chand V/s. Ganga Prasad Singh 29 I.A. 40; 24 A. 174 and Sadagopa v. Rama Rao 34 I.A. 93; 30 M. 135 as a rule special leave is refused unless there is some substantial question of law of general interest involved. The two other cases upon which reliance was placed on behalf of the respondent, namely Tiru Narayana V/s. Gopalsami 13 M. 349 and Habibunnissa V/s. Munawarunnissa 25 A. 629 are similarly distinguishable. They must be taken to have been decided on their own special facts. But we must not be taken to affirm that if cases arose under precisely similar circumstances the decisions in question may not require re-examination In the case before us, the question raised obviously goes to the very root of the matter. The defendant denies her liability to be sued in the present action, and, from the pleadings, it is manifest that this is one of the cardinal points in the case. It is quite clear, therefore, on the authority of the cases upon which reliance is placed by the appellant that the order in question is a final order within the meaning of Section 110 and consequently appealable. The same conclusion is deducible from an application of the test indicated in the judgment of Sir George Jessel in Shubrook V/s. Tufnell (1882) 9 Q.B.B. D). 621; 30 W.R. 740; to adapt the words of that learned Judge to this case, if the Judicial Committee differs from the Court below, final judgment would have to be entered for the defendant and there would be an end of the action; the order in question, therefore, is a final order.

(3.) We may add that the policy adopted by the. Legislature in the Code of 1908 tends to indicate that an order of the description now before us may legitimately be treated as a final order within the meaning of Section 110. Section 105 of the new Code provides that although the propriety of interlocutory orders in the course of a suit may be questioned in an appeal against the final decree, yet where any party aggrieved by an order of remand from which an appeal lies, does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. This is a legislative reversal of what had been the settled rule for many years past as laid down by cases of the highest authority Moheshur Singh V/s. Bengal Government 7 M.I.A. 302; Sheonath V/s. Ramnath 10 M.I.A. 413; 5 W.R. 21 (P.C.); Forbes V/s. Ameeroonessa 10 M.I.A. 340; 5 W.R. 47 (P.C.) and Shah Makhun Lall V/s. Sree Kishen 12 M.I.A. 157; 11 W.R. 19 (P.C.); 2 B.L.R. 44 (P.C.). In these cases, it was ruled by the Judicial Committee that the validity of an order of remand might, at the option of the party aggrieved, be tested by an immediate appeal against it, or by an objection taken in an appeal against the final decree. In the same way, Section 97 of the Code of 1908 provides that if a party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred against the final decree. This again is a legislative reversal of the decision of the majority of the Full Bench in Khadem Hossein v. Emdad Hossain 29 C.758. We do not rely upon the sections of the new Code as governing the question raised before us, because the order in question in the present suit was made before the new Code came into force. But we think that the provisions of the new Code afford a sufficient indication of the policy of the Legislature that the validity of orders of remand and of preliminary decrees ought to be tested at the earliest possible opportunity; a litigant ought not to be allowed to take his chance of a final decision in his favour, and, when he is defeated, on the merits, to get the whole proceedings nullified on the ground that the preliminary decree or the order of remand was open to objection. We must consequently hold that the order of the High Court which affirms the order of remand made by the District Judge is a final order within the meaning of Section 109 and is consequently, appealable. A certificate will therefore be granted that as regards nature and value, the case satisfies the requirements of Section 110.