P L D 1990 Supreme Court 709 (PLP)

"An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court‑ (a) . (b) .. (d) .. (e) If the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below." Whereas under sub‑Article (3) of Article 185, it is provided:‑‑ "(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall like only if the Supreme Court grants leave to appeal." Now the question is as to whether the impugned order of the High Court qualifies to be a final order, as visualized in Article 185(2) of the Constitution. A Full Bench of the Lahore High Court in Sultan Singh v. Murli Dhar and others (A I R 1924 Lah. 571) observed:‑‑ "An order is a 'final order' within the meaning of section 109(a) only if it decides, or has the effect of deciding the cardinal issue in the suit an issue going to the foundation of the suit (that is and thus disposes of the rights of the parties in the litigation, it being permissible to examine not only the order, but, the circumstances of the case with a view to ascertaining the effect of the order on the suit. It is the nature of the order sought to be appealed against that determines the right to appeal a and an order is a 'final order' within the meaning of section 109(a) only if it puts an. end to the litigation between the parties or dispose so substantially of the matters in issue between them as to leave merely subordinate or ancillary matters for decision." In V.M. Abdul Rahman and others v. D.K. Cassim & Sons and another (AIR1933 Privy Council 58), it was observed:‑‑ "The test of finality is whether the order 'finally disposes of the rights of the parties'. Where order does not finally dispose of those rights but leaves but them to be determined by the Courts in the ordinary way', the order is not final. That the order 'Went to the root of the suit, namely the jurisdiction of the Court to entertain it', is not sufficient. The 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 determine no appeal lies against it under S. 109(a)". Indian Supreme Court too has taken the same view. For instance in M/s Tarapore & Co., Madras v. M/s. V/0 Tractors Export, Moscow and an AIR 1970 SC 1168, it was observed:‑‑ "The expression 'final order' occurring in Art. 133(l) means a final decision on the rights of the parties in dispute in a suit or proceeding if the rights of the parties in dispute in the suit or proceeding, remain to be tried, after the order, the order is not final." In the present case too the impugned order of the High Court does not decide the matter finally and the proceedings still remain to be tried an rights in dispute between the parties have yet to be determined. According the impugned order cannot be deemed to be a final order within the meaning of Article 185(2)(e) of the Constitution, but only an order within the meaning of clause (3) of Article

185. Hence a petition for leave to appeal is competent against such an order. M.B.A./N‑254/S order accordingly