TaxTMI 
TaxTMI 
1981 (8) TMI 230
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.... the appeal before the High Court was maintainable and the High Court should have entertained and decided it on merits. We, therefore, allow this appeal, set aside the judgment dated January 15, 1981 of the Division Bench of the Bombay High Court and remand the case to the same and decide it on merits. The High Court will dispose of the appeal as quickly as possible. The interim order passed by this Court on February 16, 1981 will continue until the High Court disposes of the appeal. Liberty to parties to approach the High Court for fixing an early date of hearing. In the circumstances, there will be no order as to costs. Reasoned judgment will follow." We now set out to give the reasons for the formal Order allowing the appeal which was passed by us on the aforesaid date. As we are not at all concerned with the facts of the case it is not necessary to detail the same in this judgment. Suffice it to say that the plaintiff-appellant had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suit property and injuncting the defendant from disposing of the suit property durin....
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....nterpretation of the Letters Patent. Later decisions of the Calcutta High Court have followed this decision of Sir Richard Couch, C.J. with some modifications and clarifications. The Madras High Court has taken a very liberal view in its decision in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar. The Bombay High Court seems to have consistently taken the view that no interlocutory order can ever be said to be a judgment within the meaning of the Letters Patent so as to be appealable from the order of a Single Judge exercising original civil jurisdiction (hereinafter referred to as 'Trial Judge') to a larger Bench. The Rangoon High Court speaking through Sir Page, C.J. in In Re Dayabhai Jiwandas & Ors v. A.M.M. Murugappa Chettiur has placed a very narrow interpretation on the term 'judgment' and has almost equated it with a decree passed by a civil court. This Court also has incidentally gone into the interpretation of the word 'judgment' and has made certain observations but seems to have decided the cases before it on the peculiar facts of each case without settling the conflict or the controversy resulting from the divergent views of the High Courts. This Court, however, has ex....
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....d as follows: "There has been very wide divergence of opinion between the several High Court in India as to the content of the expression 'judgment' occurring in Cl. 15 of the Letters Patent................We consider that occasion has not arisen before us either since in view of the construction which we have adopted of s. 202 of the Indian Companies Act the scope of the expression 'judgment' in the Letters Patent does not call for examination or final decision". (Emphasis ours) There are other decisions of this Court also which have touched the fringes of the question but did not choose to give a final verdict on the vexed question and preferred to decide the cases on their own facts. We shall briefly refer to these decisions at a later stage of this judgment. With due deference to the desire of this Court to settle the controversy in question once for all, the very able, detailed and lengthy arguments advanced by counsel for the parties on various shades, features and aspects of the interpretation of the word 'judg ment' appearing in the Letters Patent, the serious legal controversy raging in this country for over a century between the various High Courts resulting in an irr....
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.... suit is kept alive and would, therefore, amount to a judgment within the meaning of the Letters Patent. The learned counsel for the respondents while countering the arguments of Mr. Sorabjee submitted the following propositions: (1) S. 104 read with order 43 Rule 1 could not apply to the original trial by the Trial Judge which is governed by the Letters Patent alone. (2) It was further argued that the forum for an appeal contemplated by s. 104 is the same as that for appeals under sections 96 to 100 of the Code of 1908, that is to say, appeals from the courts in the mofussil (district courts) to the High Court and it has no application to internal appeals within the High Court. In other words, the forum under which an appeal lies from one Judge of the High Court to a larger Bench is not a forum contemplated by s. 104 at all but is created by the Letters Patent. (3) If s. 104 of the Code of 1908 is held to be applicable to proceedings before the Trial Judge of the High Court certain strange anomalies will arise, viz., where an appeal lies from a district court under order 43 Rule 1 before a Single Judge, a further appeal will have to lie before a larger Bench against the order ....
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....sed by any court in exercise of its original or appellate jurisdiction. Section 591 may be extracted thus:- "591. No other appeal from orders; but error therein may be set forth in memorandum of appeal against decree. "Except as provided in this chapter, no appeal shall lie from any order passed by any Court in the exercise of its original or appellate jurisdiction but if any decree be appealed against, any error, defect or irregularity in any such order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal". In other words, the position was that while the statute provided only for appeals against orders, all other appeals could only be against a decree passed by the court concerned. The statute there fore, did not contemplate any other appeal except those mentioned in ss. 588 and 591. The Code of 1877 was later on replaced by the Code of 1882 but the provisions remained the same. In view of the rather vague and uncertain nature of the provisions of ss. 588 to 591 a serious controversy arose between the various High Courts regarding the interpretation of s. 588. The Bombay and Madras High Courts held that under cl. 15 of the L....
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....hat s. 588 did not affect nor was it inconsistent with the provisions of the Letters Patent and hence those orders of the Trial Judge which fell beyond s. 588 could be appealable to a larger Bench under the Letters Patent if those orders amounted to judgment within the meaning of cl. 15 of the Letters Patent. Therefore, the views taken by the Calcutta, Bombay and Madras High Courts, referred to above, were undoubtedly correct. At any rate, since a fresh controversy had arisen, the legislature stepped in to settle the controversy by enacting the new s. 104 in the Code of 1908. Section 104 made it clear that appeals against orders mentioned in order 43 Rule 1 were not in any way inconsistent with the Letters Patent and merely provided an additional remedy by allowing appeals against miscellaneous Orders passed by the Trial Judge to a larger Bench. In other words, the legislature gave full statutory effect to the views of the Calcutta, Bombay and Madras High Courts. Even after the introduction of s. 104, the conflict between the various High Courts still continued as to whether or not s. 104 would apply to internal appeals in the High Court. That is the question which we shall now dis....
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....the absence of any specific provision to the contrary the provisions of the Code does not limit or affect any special or local law. Thus, the test contained in s. 4 is not applicable in the instant case because even if the Letters Patent of the High Court be deemed to be a special law as contemplated by s. 4, the provisions of s. 104 do not seek to limit or affect the provisions of the Letters Patent. This now takes us to s. 104 of the Code of 1908, the relevant portion of which may be extracted thus:- "104.(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (a) to (f) annulled; (ff) an order under section 35-A (g) an order under section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (1) any order made under rules from which an appeal is expressly allowed by rules: (2) No appeal shall lie from any order passed in appeal under this section." Thus by the force of s. 104 all appeals as....
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....: "117. Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts". We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case s. 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by cl. 15 of the Letters Patent. What s. 104 read with order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench. Indeed, if this is the position then the contention of the respondent that s. 104 will not apply to internal appeals in the High Courts cannot be countenanced. In fact, the question of application of the Code of Civil Procedure to internal appeals in the High Court does not arise at all because the Code of Civil Procedure merely provides for a forum and if order 43 Rule 1 applies to a Trial Judge then the forum created by the Code would certainly include a forum within the High Court to which appeals against the judgment of a Trial Judge would lie. It is obvious that when the Code contemplates appeals against orders passed under various clauses of ord....
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....edure, 1908 are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal". Though not directly, some observations made by this Court also support the consistent view taken by the Privy Council that order 43 Rule 1 applies to the original proceedings before the Trial Judge. In Union of India v. Mohindra Supply Co., this Court made the following observations:- "The intention of the legislature in enacting subs. (1) of s. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by s. 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent, was therefore not affected by s. 104 (1) of the Code of Civil Procedure, 1908". Thus, this Court has clearly held that the right to appeal against judgments under the Letters Patent was not affected by s. 104 ....
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....e under the Arbitration Act. Suppose in a suit the matter is referred to arbitration and after the award is filed by the Arbitrator certain objections are taken, under s. 39 of the Arbitration Act an appeal would lie to a Larger Bench from the order of a Single Judge disposing of the objections taken by the parties against the award. Section 39 runs thus: "39. Appealable orders.-(1) An Appeal shall lie from the following orders passed under this Act (and from no others) to the Court authorised by law to hear appeals from original decree of the Court passing the orders; An Order- (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) Modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award: Provided that the provisions of this section shall not apply to any order passed by a small Cause Court. (2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme ....
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....d that an order shall be final, and that enactments to such effect are not beyond the legislative powers of the Governor-General in Council". Thus, even in the earlier times the High Court had veered round to the view that s. 588 would be applicable to the High Courts also even in respect of internal appeals in, the High Court. Similarly, in Ruldu Singh v. Sanwal Singh, Shadi Lal, C.J. Speaking for the court observed thus;- Now, section 588 of the old Code, which has now been replaced by section 104 and Order XLIII, rule of the new Code, enacted that an appeal lay from the orders specified in that section and from no other orders"; and it was consequently decided by a Full Bench of that Court in Muhammad Naim-ul-Lah Khan v. Ihsan Ullah Khan (1892) ILR 14 All. 226 that clause 10 of the Letters Patent was controlled in its operation by section 588, and that no appeal lay under the Letters Patent from an order made under the Code if it was not one of the orders enumerated in that section. Section 104 of the new Code, however, expressly saves the right of appeal otherwise provided by 'any law for the time being in force'...It seems to us that the object of the Legislature in enactin....
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....residency High Courts and identical clauses in other High Courts, discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passes an order, an appeal against the judgment of the said Trial Judge would lie to a Division Bench. Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that is in cases of appeals decided by a Single Judge under s. 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise. The relevant portion of cl. 15 of the Letters Patent may be extracted thus: "And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment.. Of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Govern....
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.... No. X of 1877, contemplates a High Court in two aspects. It contemplates a High Court doing the ordinary work of a Court of original and appellate jurisdiction; having the necessary powers of review and revision in certain cases and certain other powers such as are generally found vested in the Courts of the importance of High Courts...whatever those powers may be, it is quite clear to my mind that the power conferred on a High Court under Chapter XLV of the Code of Civil Procedure are special powers and entirely distinct from the ordinary powers required by the High Court in the carrying on of its ordinary judicial business." and Mahmood, J. Observed thus: "To hold then that where this statute of ours, namely, our present Code of Civil Procedure, declares a decree or order non-appealable, such decree or order can be made the subject of consideration by the whole of this Court under the Letters Patent, is to hold that wherever no appeal lies to this Court the ceremony of presenting it to this Court to a Single Judge of this Court who would undoubtedly reject the appeal, makes it the subject of consideration by a Bench of the Court." The other Judges agreed with the view taken by....
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....r 43 Rule 1 clearly held that an appeal would lie to the High Court against the orders contemplated in various clauses of s. 588 of the Code of 1877. The Court held thus:- "The result of this judgment (so far as it applies to the question before us) appears to me to come to this, that if the order made by a single Judge only amounts to an order such as is intended by chapter XLII of the Code, it is not appealable unless it is within section 588." The Madras case heavily relied on the decision of the Privy Council in Hurrish Chunder Chowdry's case (supra). In Lea Badin v. Upendra Mohan Roy Chaudhury & Ors. while criticising the judgment of Sir Richard Couch, C.J. in The Justice of the Peace for Calcutta (supra) the Court as an alternative argument clearly held that order 43 Rule 1 would apply pro tanto to the Trial Judge and on this ground also the order would be appealable to a Division Bench. In this connection, the celebrated jurist Sir Manmatha Nath Mookerjee, J. Observed as follows:- "But there is another and a far simpler ground on which it must be held that an appeal is competent. The order in the present case is one for which a right of appeal is provided in cl. (s) of r.....
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....place in s. 117 is defined in clause 18 of s. 2 of the Code to mean "a rule contained it the First Schedule or made under s. 122 or s. 125." our attention has not been drawn to any such rule which makes O. 43, R, 1, clause (c) inapplicable. On the other hand, O. 49, R. 3 which excludes the operation of other rules, lends support to the contention of the appellant that O. 43, R. 1 clause (c) is applicable to the present appeal. "S. 104 of the Code of 1908 is materially different from S. 588 of the Code of 1882. It provides that lie from the orders mentioned in the first clause of that section and, save as otherwise expressly provided in the body of the Code or by any law for the time being in force from no other orders." The effect of s. 104 is thus, not to take away a right of appeal given by clause 15 of the Letters Patent, but to create a right of appeal in cases even where clause 15 of the Letters Patent is not applicable.. I hold accordingly that this appeal is competent under Clause (c), R. 1, O. 43 of the Civil Procedure Code. I am further of opinion that the appeal is competent also under Clause 15 of the Letters Patent." (Emphasis ours) We find ourselves in complete agreem....
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....s to observe that their Lordships do not think that section 588 of Act X of 1877, which has the effect of restricting certain appeals, applies to such a case as this where the appeal is from one of the Judges of the Court to the Full Court." It is clear from the report that the point was elaborately argued, and the clear expression of their Lordships' opinion must be read in connection with that argument." and Prinsep, J. who agreed with the Chief Justice, made the following identical observations:- "We have it, therefore, that if beyond clause 15 of the Letters Patent, 1865, section 588 of the Code of Civil Procedure gives the right of appeal against any order of the description specified therein, there is no Court of Appeal constituted to hear it, if such order not being a judgment had been made by the Judge on the original Side of the High Court. ... ... ... I understand this to mean that section 588 does not affect any matter coming within clause 15 of the Letters Patent, and if I may venture to say so, the reasons which led to the expression of that opinion and which have not been given in the judgment reported may be those stated by me for arriving at the same conclusion. ....
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....to argue, that the formal order of the 7th of June, 1935, was one of the appealable orders provided for in the Code of Civil Procedure. On the contrary, he went so far as to averwith considerable vehemence - that neither sec. 104 nor order XLIII, r. l of the Civil Procedure Code has any application to the High Court. I would point out that it is clear from sec. 117 of Code of Civil Procedure and still clearer from Or. XLIX, r. 3, C.P.C., that both sec. 104 and Or. XLIII, r. 1, do apply to the High Court". (Emphasis ours) It is manifest from the observations made above that in view of the clear and explicit provisions of s. 117 and order 49 Rule 3 which while exempting other provisions from the jurisdiction of the High Court did not exempt the various clauses of order 43 Rule 1. An identical view seems to have been taken by Sir Page, C.J. in a Full Bench decision of the Rangoon High Court in In re: Dayabhai Jiwandas & Ors. (supra) where the Chief Justice pithily observed as follows :- "In many statutes in India, of course, a Right of appeal from an order passed pursuant to the statute is expressly provided, and in such cases an appeal will lie on the terms and conditions therein ....
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....rsy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale". On a parity of reasoning, an order refusing to appoint a receiver or grant an injunction and similar orders mentioned in various clauses of order 43, Rule 1 fall within the tests laid down by this Court in the aforesaid case. We are aware that there are some decisions which have taken a contrary view by holding that s. 104 read with order 43 Rule I does not apply to a Trial Judge under the Letters Patent. These decisions do not appear to have considered the various shades and aspects and the setting of the provisions of ss. 104 and 117 and order 49 Rule 3 but seem to have proceeded on the basis that the Letters Patent being a special law or a special jurisdiction, the same over-rides s. 104 which in terms does not apply where a special law makes certain special provisions. We now proceed to discuss these cases briefly. In Pandy Walad Dagadu Mahar & Anr. v. Jammadas Chotumal Marwadi (1) the identical point which is at issue in the instant appeal was not involved and the finding given by t....
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....ian Companies Act and other similar local or special Acts. If these special Acts could without affecting the jurisdiction of the Letters Patent or overriding the same provided a supplementary or additional jurisdiction, there was no reason why the Code of Civil Procedure also could not do the same particularly when the Trial Judge had to adopt the procedure contained in the Code, starting from the presentation of the plaint to the delivery of judgment. Fourthly, the Division Bench does not seem to have considered the fact that what the Letters Patent did was merely to confer original civil jurisdiction on the High Court to be exercised by a Single Judge, who would undoubtedly be a Trial Judge, but of an elevated status so that only such suits could be filed in the Court of the said Judge as are of a very high valuation which may differ from High Court to High Court. This was done in order that in heavy suits involving substantial questions of fact and law, the hearing of the suit by a senior Court of the status of a High Court Judge would repose, endeanr and generate greater confidence in the people. Thus if, interlocutory orders passed by District courts in the mofussil could be a....
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.... Civil P.C . does not control cl. 15 of the Letters Patent, and in spite of the absence of a saving clause in sub-s. (2) of s. 104 does not affect or cut down the right of appeal conferred by the Letters Patent." (Lokur, J.) As regards the first part of the observations of Wadia, J, we are constrained to observe that the learned Judge has not correctly construed the true ratio of the decision of the Privy Council in Hurrish Chunder Chowdry's case (supra) where, as indicated, the Privy Council has in express terms held that s. 588 (which now corresponds to order 43 Rule 1) clearly applies to appeals against orders of a Trial Judge to a larger Bench of the High Court. Similarly, the observations made by Lokur, J. run against the plain interpretation of s. 104 by assuming that there is a conflict between s. 104 read with order 43 Rule I and the Letters Patent when in fact, as pointed out, there is no such conflict at all-all that s. 104 does is to give an additional jurisdiction apart from the Letters Patent which is in no way unconstitutional with the Letters Patent. We may like to observe here that there is no non-obstante clause in the provisions of the Letters Patent to indicate ....
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....be a Court constituted for hearing an appeal and the only provision for hearing an appeal, from the judgment of a single Judge, by a bench of two or more Judges of the same Court is contained in the Letters Patent of the Chartered High Courts. An order, to come under the Letters Patent must be a judgment, and, if an order is not a judgment, then cl. 10 of the Letters Patent would not apply and there is no provision for constituting a bench of more than one Judge to hear such an appeal. We, therefore, fail to understand how O. 43 R. 1, or s. 104, Civil P.C. without any reference to cl. 10 of the Letters Patent, can help the appellants.' In this case also, the line of reasoning adopted by the court is the same as that of the Bombay High Court referred to above. One of the reasons given is that while order 43 makes provision for A appeal from one court to another, it is not intended to apply to an appeal from one Judge of the High Court to a bench of the same Court. No reasons have been given by the Judges for holding why this is not so particularly in the face of the clear provisions of s. 117 and order 49 Rule 3, as discussed above. Thus, the first part of R the reasoning of the H....
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....104, Civil P.C., but by cl. 10, Letters Patent.. This right of appeal depends on the special provision made in the Charter. S. 4, Civil P.C., provides that the Code does not affect any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force. Since the special jurisdiction or power is conferred on the High Court by cl. 10, Letters Patent the provisions in the Civil Procedure Code regarding appeals cannot come into operation in regard to an appeal from a single Judge of the High Court to the High Court". With due respect, we are unable to agree with the opinion expressed by Niyogi, J. who has made a bald statement that the Code of Civil Procedure does not make any provision in regard to an appeal from an order passed by a Trial Judge to a Division Bench and that the right of appeal from a decree of a Civil Judge to a High Court is not governed by s. 100 or s. 104 but by cl. 10 of the Letters Patent of the Nagpur High Court. Here again, the learned Judge seems to have committed an error apparent on the face of the record. An examination of the language of sections 96 to 100 would clearly show that the ....
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....nder Chowdry's case (supra) it was clearly held by the Judicial Committee that s. 588 was applicable even to internal appeals in the High Court. On a parity of reasoning, therefore, on the basis of which we have overruled the decisions of the other High Courts, taking a similar view we find ourselves unable to agree with the view taken by Mangalmurti and Bose, JJ. in the aforesaid case and hold that this case is not correctly decided. A later decision of the Allahabad High Court also seems to have taken the same view. In Standard Glass Beads Factory & Anr. v. Shri Dhar & Ors. (2) the following observations were made :- "Such an order if made by a subordinate court is appealable under or. 43 R. 1, C.P.C.; it is, as we have seen an order from which in England an appeal lies, without leave, to the Court of Appeal. If the narrower view of the meaning of the word 'judgment' be correct such an order when made by a Judge of a High Court in India exercising original jurisdiction would not be appealable". Here also with due deference to the Judges constituting the Full Bench, we are of opinion that they committed an error in drawing inspiration from the procedure prevailing in England in....
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....isions which have taken a contrary view. The High Court was, therefore, not quite correct in observing that the High Courts in India had taken a consistent view in regard to this matter. Thirdly, the High Court seems to have relied heavily on the decision of the Privy Council in Hurrish Chunder Chowdry's case (supra) and on Chappan's case (supra) in holding that order 43 did not apply to internal appeals in the High Courts which were governed by the Letters Patent alone. Here also, with due respect, the High Court has gravely erred. We have pointed out while dealing with Hurrish Chunder Chowdry's case (supra) that the Privy Council had clearly laid down that s. 588 applied to the High Court and this position has been understood in this very sense by several judgments discussed above. The High Court, therefore, has not correctly appreciated the real ratio of the Privy Council case, referred to above. As regards Chappan's case (supra), the conclusion of the High Court is not borne out by the ratio of the Full Bench in the said case. It would appear that the Full Bench in the aforesaid case was concerned with two questions: (1) Whether in view of s. 622 of the old Code (which corres....
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....ct Judge passes such an order an appeal can be preferred to the High Court. Whatever view be taken of section IS of the Letters Patent it would have been impossible to include section 588 among those sections that do not apply to the High Court". Thus, the ratio decidendi of the decision clearly goes to indicate that the Full Bench of the Madras High Court had held in no uncertain terms that s. 588 applied to the High Court and orders mentioned therein passed by a Trial Judge would be appealable to a larger Bench. This, therefore, knocks the bottom out of the decision of the Bombay High Court when Chappan's case (supra) in no way supported the view taken by them. For the reasons given above, we hold that J.K Chemicals's case (supra) was also wrongly decided and can no longer be treated as good law. It is rather unfortunate that despite clear, explicit, pointed and pragmatic observations of the Privy Council in Hurrish Chunder Chowdry's case (supra) and further clarification by the legislature by introducing s. 104 of the Code of 1908, some of the High Courts n seem to have stuck to the antiquated view that the provisions of order 43 Rule I do not apply to internal appeals within ....
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.... meaning of the word 'judgment' has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and in spite of such length of time, unfortunately, no unanimity has so far been reached. As held by us earlier it is high time that we should now settle this controversy once for all as far as possible. We now proceed to deal with the main controversy as to what is the true scope, meaning and purport of the word 'judgment' used in cl. 15 of the Letters Patent. Numerous authorities on both sides were cited before us in the course of the very able arguments advanced by counsels for the parties and it appears that there are three leading judgments which have spelt out certain tests to determine as to when an order passed by a Trial Judge can be said to be a 'judgment' within the meaning of. cl IS of the Letters Patent. A very narrow view on this point was taken by a Division Bench Of the Calcutta High Court in the case of The Justice of the Peace for Calcutta (supra) where Sir Couch, C.J. On an interpretation of cl. 15 of the Letters Patent observed thus: "We think that "judgment" in clause 15 means a decision which affects the merits of the qu....
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.... High court is concerned and has been consistently followed by later decisions at the same time it cannot be denied that in a number of cases the conscience of the Judges was so shocked that they tried to whittle down or soften the rigours of this decision so much so that in one case the observations of the Chief Justice were not only not followed but were described as antiquated and in other cases the Judges strongly expressed them selves that the High court should give up its fondness to stick to the principles laid down by the learned Chief Justice. It is not necessary for us to burden this judgment with later decisions of the Calcutta High court in trying to comment on the correctness of the principles laid down by sir Couch, c J. but a few instances may be quite revealing. In Chandi Charan Saha v. Jnanendra Nath Bhattacharjee and Ors.,(l) Sir Asutosh Mookerjee in his leading judgment modified the strict rule of interpretation of 'judgment' laid down by sir Couch, C.J. and pointed out that the words 'merits of the question between the parties by determining a right of liability' were not to be confined or restricted to the controversy in a suit itself but could take within its....
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....v. Mansata Film Distributors and Anr., the following observations were made: "On a strict construction of the Calcutta test, the Tight or liability must mean some right or liability which is a subject-matter of controversy in the suit or proceeding but in its application to individual cases, that strict construction has not been adhered to and was indeed often departed from by Couch, J., himself who was the author of the test. Orders concerning the jurisdiction of the Court to entertain a suit, as distinguished from matters of the actual dispute between the parties, were held by him to come within the category of judgments." In Mooammed Felumeah v. S. Mondal & Ors. the Court pithily observed as follows: "Now, so far as this Court is concerned, there is a considerable body of judicial opinion, which, while holding that Sir Richard Couch's above definition is classical and of pre-eminent practical importance and usefulness, has consistently refused to regard it as, in any sense. exhaustive or inflexible. Indeed, in essence and truth, it has been accepted merely as the starting point on a broad open field, stretched in front of it in all its vastness and immense magnitude, and Judg....
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....udication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent." I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) - e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a 'judgment' within the meaning of the clause." Analysing the observations of the learned Chief Justice it would appear that he has laid down the following tests in order to assess the import and definition of the word 'judgment' as used in cl. IS of the Letters Patent :- (1) It is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding; (2) If, irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment; (3) Similarly, the effect of the order, if not complied with, is to terminate the proceedings, the said order would amount to a judgment; (4) Any order in an independent proceeding which is ancillary to the suit (not being a step towards judgment) but is designed to ....
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....'s case. On the other hand, the tests laid down by Sir White, C.J. in Tuljaram Row's case have been followed by the Lahore High Court in Ruldu Singh v. Sanwal Singh and by some other High Courts in Standard Glass Beads Factory Shri Dhar & Ors. and later decisions of the Madras High Court as also by Andhra Pradesh High Court in Kuppa Viswappathi v. Kuppa Venkata Krishua Sastry. A Full Bench of the Allahabad High Court, however, in Mt. Shahzadi Begam v. Alak Nath dissented from the view taken by the Madras High Court and held that the tests laid down by that High Court in the aforesaid case were rather too wide. In this connection, Sulaiman, C.J., speaking for the Court observed as follows :- "We would like to point out that the test laid down by the learned Chief Justice of the Madras High Court is put in too wide a language and cannot be accepted as laying down the correct criterion". Similarly, in a later Full Bench decision of the Nagpur High Court in Manohar Damodar Bhoot v. Baliram Ganpat Bhoot, Hidayatullah. J. (as he then was) who wrote the leading judgment, very pithily described the essential requisites and the exact meaning of the word 'judgment' as used in the Letters ....
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....s left in A which the question as to whether or not the orders passed by the Trial Judge are judgments would arise. After discussing the decisions of this Court, we shall give a list of illustrative cases which may justly be described as 'judgment' within the meaning of the Letters Patent so as to cover almost the entire field though a few cases still may have to be determined according to the principles laid down. The first decision of this Court which is relevant is Asrumati Debi's case (supra). In this case the only question involved was whether an order transferring a suit under cl. 13 of the Letters Patent satisfied the tests of a judgment as mentioned in cl. 15 of the Letters Patent. This Court referring to the Calcutta and Madras decisions refrained from giving any particular decision except that they held that the mere order of transfer under cl. 13 of the Letters Patent could not be said to be a judgment and was therefore not appealable. This Court pointed out that the order neither affected the merits of the controversy not did it terminate or dispose of the suit. In this connection, the Court observed as follows: "The judgment must be the final pronouncement which puts ....
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....Patent". We might mention here that the observations of this Court completely demolish the arguments of some of the High Courts that s. 104 does not apply to internals in the High Court because this Court while referring to the Code made specific reference to s. 104 in the previous paragraph. Apart from this, there is no observation by this Court regarding essential requisites of a Judgment. In State of U.P. v. Dr. Vijay Anand Maharaj (supra) the order impugned passed by the Single Judge was an order dismissing an application filed by the applicant to review the order of the Trial Judge. The question for determination was whether the order was a judgment so as to be appealable to the Division Bench. This Court referred to the observations of Hidayatullah, J. extracted in Manohar V. Baliram (supra) and though they did not expressly approve this decision they indirectly seem to have been impressed by the reasons given by Hidayatullah, J. Nothing further was said by this Court because it held that on the facts of that case the order of the Trial Judge dismissing the application for review was A appealable. We might mention here that under clause (w) of order 43 Rule 1 an order granti....
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....n become a judgment within the meaning of clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial court is concerned. In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by ....
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....y the Allahabad High Court on this aspect of the matter. The definition of the word 'judgment' in sub-s. (9) of s. 2 of the Code of 1908 is linked with the definition of 'decree' which is defined in sub-s. (2) of s. 2 thus: "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation:-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final". Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter o....
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....iction, res Judicata, a manifest defect in the suit, absence of notice under section 80 and the like, and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an R order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to larger Bench. (3) Intermediary or Interlocutory judgment-Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not covered by o. 43 R.1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuab....
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....ass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot b....
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.... Letters Patent. We, therefore, do not approve of the test laid down by the Rangoon High Court and that decision therefore has to be confined only to the facts of that particular case because that being a case of transfer, it is manifest that no question of any finality was involved in the order of transfer. We would like to adopt and approve of generally the tests laid down by Sir White, C.J. in Tuljaram Row's case (supra) (which seems to have been followed by most of the High Courts) minus the broader and the wider attributes adumbrated by Sir White, C.J. Or more explicitly by Krishnaswamy Ayyar, J. as has been referred to above. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court: (1) That the Trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot b....
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.... staying or refusing to stay a suit under s. 10 of the Code of Civil Procedure. (14) An order granting or refusing to stay execution of the decree. (15) An order deciding payment of court fees against the plaintiff. Here, it may be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a ....
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....on or to appoint a receiver in an interlocutory application made in the suit, is appealable or not ? In other words, the maintainability of an appeal filed before a Division Bench of the Bombay High Court against an order of a learned single Judge of the High Court dismissing an interlocutory application for injunction and for appointment of a receiver by way of interim relief pending final disposal of the suit in the original side of the High Court, forms the subjectmatter of the present appeal. The question is of some importance, as there appears to be no uniformity of the view amongst the various High Courts on the competence and the maintainability of such an appeal. The appellant has filed in the original side of the Bombay High Court a suit for specific performance of an agreement dated 12th January, 1979. In the said suit the appellant, as plaintiff in the suit, took out a notice of motion seeking the following reliefs:- (a) that pending the hearing and final disposal of the suit, the respondent i.e. the defendant in the suit, be restrained by an order and injunction from in any manner dealing with or disposing of or alienating or A encumbering the right, title and interes....
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....ealability of the order under appeal without going into the merits of the case. The learned counsel for the parties have submitted before us that there is a conflict of decisions on the question of appealability of an order of this kind and maintainability of an appeal from such an order and this Court should resolve the conflict and decide the question of appealability of such an order and necessarily the maintainability of the appeal to a Division Bench of the High Court. It has been further submitted before us that in the event of this Court holding that an appeal lay from the order in question and an appeal to the the Division Bench from the order was competent and maintainable, this Court should remand the appeal to the High Court for decision on merits and should not in this appeal go into the merits of the case. The learned counsel for the parties, in view of the aforesaid submissions made, did not advance any arguments on the merits of the case before us. The only question with which we are concerned in this appeal, as I have already indicated, therefore, is whether the order of the learned Single Judge refusing to grant an injunction or to appoint a receiver on the interl....
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.... orders, just as various other statutes make special or specific provisions with regard to the right of appeal in respect of any order under the particular statute. Mr. Sorabjee has submitted that S. 104 of the Civil Procedure Code and order 43 thereof clearly apply to the original side of a High Court. In support of these submissions, Mr. Sorabjee has drawn our attention to the various provisions of the Code and particularly to Ss. 4, 98-104, 116 to 120, and S. 122 and to order 43 rule 1 thereof. Mr. Sorabjee in this connection has also relied on the following decisions :- 1. Mathura Sundari Dass v. Haran Chandra Shall(1) 2. Lea Badin v. Upendra Mohan Roy Choudhary (2) 3. Union of India v. Mohindra Supply Co. (3) 4. Kumar Gangadhar Bagla v. Kanti Chander Mukherji (4) 5. Sonbai v. Ahmedbhai Habibhai (5) Mr. Sorabjee has criticised the view expressed by the Bombay High Court that S. 104 of the Code of Civil Procedure and order 43 thereof do not apply to an order passed by a learned Single Judge on the original side of the High Court and an order passed by a learned Single Judge on the original side can only become appealable if the order can be said to be a 'judgment' within t....
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..... It is his submission that the word 'judgment' in cl. 15 of the Letters Patent may include various other orders which may not otherwise be appealable under the provisions of the Code or any other Statute but may still become appealable as 'judgment' by virtue of the provisions contained in the Letters Patent. In other words, it is the contention of Mr. Sorabjee that the expression 'judgment' in cl. 15 of the Letters Patent should be so construed as to include necessarily all orders which are appealable under any statute and also in appropriate cases various other orders which are not expressly made appealable by any statute. He contends that the provisions of the Code contained S. 104 and order 43 or in any other statute with regard to the appealability of any order do not have the effect of curtailing or affecting the special jurisdiction and power of the Court of entertaining an appeal from any other order, if the Court is satisfied that the order is in effect a judgment within the meaning of cl. 15 of the Letters Patent. Mr. Sorabjee has submitted that as to the true meaning, effect and import of the word 'judgment' in cl. 15 of the Letters Patent, there is a divergence of judi....
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....aced on S. 4. They have also strongly relied on the decision of the Bombay High Court in the case of Vaman Raoji Kulkarni v. Nagesh Vishnu Joshi(1) and also on the decision of the same High Court in the case of J.K. Chemicals Ltd. v. Kreba and Co. (supra). They have submitted that these judgments for cogent reasons recorded therein represent correct law and the view expressed by the Bombay High Court to the effect that S. 104 and order 43 of the Code of Civil Procedure do not apply to the original side of the Bombay High Court, has been consistently followed by the Bombay High Court and should be upheld by this Court. They have also relied on the following observations of the Judicial Committee in the case of Hurrish Chunder Chowdhry v. Kali Sundari Debia(2) at p. 17:- "It only remains to observe that their Lordships do not think that sec. 588 of Act X. Of 1877, which has the effect of restricting certain appeals, applies to such a case as this, where the appeal is from one of the Judges of the Court to the full Court." They have argued that if the provisions of the Code are not held to be applicable to the original side of the Bombay High Court, then the appeal from the order of....
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....remedy which a landholder or landlord may have under any law for the time being in force for the recovery of lent of agricultural land form the produce of such land." S. 5 of the Code deals with the applicability of the provisions of the Code to Revenue Courts. S. 100 of the Code deals with appeals from Appellate Decree and S. 100-A which has been introduced into the Code w.e.f. 1.2.1977 by the Amending Act, 104 of 1976 provides that notwithstanding anything contained in Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal. The material provisions of S. 104 are:- "S. 104 (1); An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders :- x x x x x x x x (ff) an order under S. 35A; (fa) an order under S. 91 or S. 92 refusing leave to inst....
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....elates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation. S. 119: Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorised him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneyes. S. 120: The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, secs. 16, 17 and 20. S. 122 empowers the High Courts, not being the Court of a Judicial Commissioner to make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence. S. 129 further provides: "Notwithstanding anything in this Code, any High Court not being the Court of a Judicial Commissioner may make such rules not inconsistent with the Letters Patent or order or other law establishing of it to regulate its own procedure in the exercise of its original civil jurisdiction as it shal....
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....ompetent to hear an appeal from any such order which may constitute a judgment within the meaning of cl. 15 and from any decree by a Single Judge on the original side of the High Court. In the same way, in case of any other order in respect of which right to prefer any appeal has been conferred by a statute, a division Bench of the High Court will be competent to hear such an appeal. S.3 of the Code, in my opinion, has really no bearing on the question and creates no bar to the competence and maintainability of an appeal from an order passed by a Judge on the original side, if the order is otherwise appealable. S. 4 of the Code has been enacted to preserve any special or local law in force. An analysis of the material part of this section clearly indicates that in the absence of any specific provision to the contrary, no provision in the Code shall be deemed to limit or otherwise affect any special or local law in force or special jurisdiction or power conferred or any special form of procedure prescribed by or under any Jaw for the time being in force. The argument that S. 104 and order 43 of the Code affect the special jurisdiction or power conferred on the High Court under cl. 1....
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....akes specific provisions regarding the nature and manner of applicability of the Code to Revenue Courts and the Revenue Court has also been defined in the said section. On the other hand, in Ss. 116 to 120 it is convincingly indicated that S. 104 and order 43 of the Code of Civil Procedure apply to the original side of a High Court. Ss. 116 to 120 are contained in part IX of the Code which makes special provisions relating to High Courts (not being the Court of Judicial Commissioner). S. 117 specifically provides that the provisions of the Code shall apply to High Court save as provided in part IX or in part X. S. 120 contained in part IX lays down that the provisions contained in Ss. 16, 17 and 20 of the Code shall not apply to the High Court in the exercise of its original civil jurisdiction. Part X which deals with rules and manner of framing thereof does not have any material bearing on the question of applicability of S. 104 and order 43 of the Code to the original side of the High Court. The effect of the special provisions contained in part IX relating to High Courts, therefore, clearly appears to be that the provisions of the Code have as provided in Part IX or Part X or in....
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..... 100A in the Code (by the Amending Act 104 of 1976, S. 38), the Legislature has thought it fit to interfere with the right of appeal in certain cases, even if such right had been conferred by Letters Patent or any other law. This right of appeal under cl. 15 of the Letters Patent is in no way curtailed or affected by S. 104 of the Code of Civil Procedure and S. 104 seeks to confer the right of preferring an appeal in respect of the various orders mentioned therein. In other words, by virtue of the provisions contained in S. 104(1), a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein, even though such orders may or may not be appealable under cl. 15 of the Letters Patent as a judgment and the right of appeal under cl. 15 of the Letters Patent remains clearly unimpaired. In this connection the following observations of this Court in the case of Union of India v. Mohindra Supply Co. (supra) at p. 511 may be usefully quoted:- "The intention of the legislature in enacting the sub-s.(1) of S. 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved This intention is emphasised by s. 4....
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....pt that they do not restrict the express Letters Patent appeal." The effect of sub-section (1) S. 104, therefore, is clearly not to affect any existing special or local law or any special jurisdiction or power conferred and to preserve any existing right of appeal whether under any statute or the Letters Patent and to create a further right of preferring an appeal in respect of the orders enumerated therein. C In the case of Mathura Sundari Dassi v. Haran Chandra Shaha and Ors. (supra), Sanderson, C.J. Observed at p. 362 as follows: "I would be very loth to hold that this order is not a 'judgment' within the meaning of cl. 15 of the Letters Patent, but it is not necessary in my judgment to give a definite opinion upon it because I think, on the second point, the Code does give a right of appeal. By clause 14 of the Letters Patent it is provided as follows: 'And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Council, exercised at meetings for the purpose of making law and regulations'. By the terms of S. 117 the code is made applicable to the High Court, and o. 43. R. 1, gives a ....
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....al Committee in Hurriah Chandra Choudhary v. Kali Sudari Dasi that the Civil Procedure Code, in so far as it provides for appeals, does not apply to an appeal preferred from a decision of one Judge of a High Court to the Full Court. The true effect of the decision of the Judicial Committee was considered by this Court in Toolses Money Dassesv. Sudevi Dasses (1890) 25 Cal. 361) but it is not necessary for my present purpose to determine its hearing in all its implications, because in my opinion, the law has been substantially altered since that decision was pronounced. S. 104 Of the Code of 1908 is materially different from S. 588 of Code of 1882. It provides that an appeal shall lie from the orders mentioned in the first clause of that section, and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no other orders'. The effect of S. 104 is thus, not to take away a right of appeal given by clause IS of the Letters Patent, but to create a right of appeal in cases even where clause 15 of the Letters Patent is not applicable. I may here observe perethically that in the case of Tooles Money Dasses v. Sudevi Dasses. Princep J. fel....
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.... its purview S. 43 of the Code. The further approach of the Bombay High Court in that case as to subordination of a judge of the High Court sitting singly on the original side, is fallacious and untenable. An appeal under cl. 15 of the Letters Patent from a judge sitting singly on the original side of the High Court becomes competent to a division Bench and a learned judge against whose judgment the appeal is preferred does not become subordinate to the High Court. There is in fact no question of subordination at all. The observations of the Judicial Committee in the case of Hurish Chandra Choudhary v. Kali Sudari Dasi (supra) at p. 17 relied on by the learned counsel for the Respondents are of no material assistance to them. I have already quoted the said observations of the Judicial Committee. The said observations made in relation to the provisions of S. 588 of the Act 10 of 1877 only go to lay down that the said section which has the affect of restricting certain appeals does not have the affect of restricting the right of appeal under cl. 15 of the Letters Patent and does not apply to a case where an appeal is one under cl. 15 of the Letters Patent. It may further be noted th....
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....against a 'judgment'. An order which satisfies the requirements of 'judgment' within the meaning of cl. 15 becomes appealable under the Letters Patent. What kind of an order will constitute a 'judgment' within the meaning of cl. 15 of the Letters Patent and will become appealable as such much necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed. The question whether a particular order constitutes a judgment within the meaning of cl. 15 of the Letters Patent to be appealable under the provisions thereof has come up for consideration before the various Courts in a number of decision. Very many decisions have been cited in the present case and they have been considered by my learned brother, Fazal Ali, J. in his judgment. The question indeed, is not free from difficulties and divergent views have been expressed by different Courts and by various learned Judges. This Court had also the occasion to consider as to what may constitute a judgment within the meaning of cl. 15 of the Letters Patent in certain cases. In the case of Shanti Kumar R. Canji v. The Home Insurance Co. Of New York (Supra) this Court referring to the earli....