S. Ramesh Babu vs P. Changaiah

M.M. Sundresh, J.—An interesting legal issue has arisen in this Appeal touching upon the provisions contained in Order 7 of Madras High

Court Original Side Rules. As it is also imperative to analyse the facts, both the issues governing law and fact are discussed here under.

Background facts:

1.1. A summary Suit was filed by the Plaintiff under Order 7, Rule 1 of the Original Side Rules read with Order 37, Rule 1 of CPC towards the

recovery of a sum of Rs. 1,84,58,710/- along with the interest.

1.2. The Plaintiff has been running the business of supplying film shooting equipments. There was an agreement between the Plaintiff and the

Defendant. The Plaintiff''s case is that supplies have been made to the Defendant. The Plaintiff maintained a running account in the name of the

Defendant. The Defendant paid a sum of Rs. 30,00,000/-(Rupees thirty lakhs only) on 07.05.2007, which was duly credited to his account.

Thereafter, further services of the Plaintiff were availed. A subsequent payment of Rs. 5,00,000/- (Rupees five lakhs only) was made on

01.10.2007, which was also credited to his account.

1.3. It is the further case of the Plaintiff that after the settlement of accounts, it was agreed between the parties that a sum of Rs. 1,50,00,000/- has

to be paid by the Defendant towards the full and final settlement of the dues. In discharge of the liability, three Cheques have been issued for a sum

of Rs. 50,00,000/- each by the Defendant on 25.12.2009, 04.01.2010 and 31.07.2010 respectively. It was also agreed between the parties that

no interest would be charged for the interregnum period. The Cheques issued by the Defendant got dishonoured. The Defendant issued ''stop

payment'' instruction to the Bank. As the liability was on the Cheques, a Suit was duly laid as a summary Suit.

1.4. Pending Suit, the Plaintiff filed an Application under Order 39, Rules 1 & 2 of the CPC seeking an order of injunction restraining the

Defendant from releasing, executing and exploiting the Telugu picture ""KOMARAM PULI"" produced by the Defendant. On 25.08.2011, after

directing the Defendant to execute the Bank guarantee for the Suit amount, the learned Single Judge passed the following order.

This Court passed an order in O.A. No. 956 of 2010 on 07.09.2010. At the instance of the learned Counsel appearing for the Plaintiff/Applicant,

this Application has been posted before me once again ""for being mentioned"".

I have heard the learned Counsel appearing for the Plaintiff/Applicant and the learned Counsel appearing for the Respondent. I have also gone

through the documents including the order passed by this Court on 07.09.2010.

In this Application, an order was passed on 07.09.2010 by me and the operative portion of the order is extracted below:

In the mean time, to secure the interest of the Plaintiff, the Defendant shall execute a Bank Guarantee for the suit claim of Rs. 1,04,58,710/- in

favour of the Registrar General, High Court, Madras, immediately. It is also further undertaken to this Court by the learned Counsel appearing on

behalf of the Respondent/Defendant that in the event of some delay in executing the Bank Guarantee, the picture shall not be released without

executing the Bank Guarantee as stated above and an endorsement has also been made to that effect by the learned Counsel for the

Respondent/Defendant in application No. 4972 of 2010. The Respondent/Defendant is present before this Court and he has also signed in the

endorsement made by the learned Counsel for the Respondent/Defendant.

On such execution of the Bank Guarantee, the learned Counsel may make a mention before this Court and thereafter post the matter for further

orders to be passed. Since the Suit is filed under Order 37, Rule 1 of C.P.C., the Registry may expedite the Suit and post it for trial, if need be, on

or before 19th January, 2011.

In view of the order passed in Paragraph-5 as mentioned above, it is submitted that the Defendant is taking a stand that this Court has directed

the Suit to be posted for trial and therefore, the Suit has been already converted from Summary Suit to an ordinary Suit.

As this was sought to be resisted by the Plaintiff, the matter was posted before me ""for being mentioned"", at the instance of the learned Counsel

appearing for the Plaintiff, to clarify Paragraph 5 of the Order dated 07.09.2010.

After hearing, the learned Counsel appearing on either side, I am of the considered view that there is no scope for any clarification, as in

Paragraph 5 it has been clearly stated that the Suit is filed under Order 37, Rule 1 of C.P.C., and only when the necessity arises it may be posted

for trial. A Summary Suit will be posted for trial only when the Defendant comes to Court with a triable issue and gets leave of the Court to defend

the Suit conditionally or unconditionally. At the time of passing the order, this Court has not gone into the question of triable issues and to grant

leave to defend the Suit either conditionally or unconditionally. Therefore, it is very clear that only when the Defendant comes with the triable

issues, the Suit may be posted for trial, after getting leave to defend the Suit. Without doing so, it is not open to the Defendant to interpret and to

contend that this Court has already granted leave to defend the Suit, which is not correct.

My order to put the Suit for trial is subject to complying with the provisions of Order 37 of C.P.C., and therefore, I reiterate that no leave has

been granted, after finding that there is a triable issue. It is open to the Defendant to take out necessary steps under Order 37, Rule 1 of C.P.C., or

any other remedy available under law.

Since the Defendant has now taken out an application in A. No. 1629 of 2011 under Order 7, Rule 7 of Original Side Rules to that this Suit as

an ordinary Suit, arguments will have to be heard on this Application. It is submitted that the counter has been filed by the learned Counsel

appearing for the Plaintiff/Respondent in this Application.

Hence, post this Application before the regular Court for hearing.

1.5. An Application was filed by the Defendant under Order 7, Rule 7 of the Original Side Rules before the Court raising the grounds available

under Order 7, Rule 6 of the Original Side Rules which deals with an application seeking leave to defend. The said application was dismissed by

the learned Single Judge mainly on two grounds. The first ground is that the Appellant ought to have filed an Application under Order 7, Rule 6 of

the Original Side Rules, even though the Application filed before the Court instead of Master is maintainable under certain contingencies. The

second ground was on merit that the averments made in the affidavit are not sufficient enough for the Court to allow the Application, thereby

treating the Suit as an ordinary Suit. Challenge is made to the said order before us by the Appellant.

Submissions of the Appellant:

Shri Parthasarathy, learned Counsel appearing for the Appellant, would contend that the provisions contained in Order 7, Rule 6 of the Original

Side Rules and Order 7, Rule 7 of the Original Side Rules are different and distinct covering the same scope. Notwithstanding the provision

contained in Order 7, Rule 6 of the Original Side Rules, the Application under Order 7, Rule 7 of the Original Side Rules is maintainable. The

grounds available be raised under Order 7, Rule 6 of the Original Side Rules can also be raised in an Application made under Order 7, Rule 7 of

the Original Side Rules, Order 7, Rule 7 of the Original Side Rules provides exclusive power to the Court. The other provision contained under

Order 7 are subject to Rule 7 and therefore, the Application is maintainable. It is not necessary that the Defendant will have to exhaust his remedy

under Order 7, Rule 6 of the Original Side Rules and thereafter, seek a further relief under Order 7, Rule 7 of the Original Side Rules. While

construing the provisions, the Principle of Harmonious Construction will have to be adopted. The averments made in the Affidavit filed in support

of the Petition would show that triable issues are involved. The Appellant has shown his bona fides by depositing a portion of the decree amount.

The learned Counsel also made a belated attempt stating that the Appellant did file an Application under Order 7, Rule 6 of the Original Side Rules

earlier to the Application filed under Order 7, Rule 7 of the Original Side Rules but unfortunately did not represent the same. Therefore, liberty may

be given to proceed with the same in the event of this Court not agreeing with the contentions on merit. In support of his contentions, the learned

Counsel has made reliance upon the following judgments:

(i) Union of India (UOI) and Others Vs. Brigadier P.S. Gill,

(ii) Iridium India Telecom Ltd. Vs. Motorola Inc.,

(iii) D. Gopalan Vs. Raghava Naicker and others,

(iv) Sreyas Sripal and T.P. Anand Vs. Upasana Finance Ltd.,

(v) Shah Babulal Khimji Vs. Jayaben D. Kania and Another,

(vi) Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation, and

(vii Sekuru Murahari Rao Vs. Kandula Bapayya,

Submissions of the Respondent:

Per contra, Shri P.L. Narayanan, learned Counsel appearing for the Respondent, would submit that the application filed by the Appellant lacks

bona fides. The Appellant has admitted in categorical terms before the learned Single Judge acknowledging his liabilities. He has not filed any

Application under Order 7, Rule 6 of the Original Side Rules. Even if such an Application was filed, it was not pursued. This Application has been

filed as an after thought in order to get over the period of limitation. The issues covered under Order 7, Rule 6 of the Original Side Rules cannot be

raised and agitated in an Application under Order 7, Rule 7 of the Original Side Rules. While construing the provisions, the underlined scheme will

have to be looked into. Each Rule will have to be given its own meaning. It cannot be made to become redundant and otiose. The Appeal filed is

also not maintainable under Clause 15 of the Letters Patent. The Appellant has got a remedy under Order 7, Rule 9 of the Original Side Rules.

Since the Appellant has admitted his liability, Section 58 of the Indian Evidence Act, 1872, would come into play. If the contention of the

Appellant is accepted, the very object of the Summary proceeding itself would be defeated. Therefore, the Appeal will have to be dismissed as

devoid of merits. The learned Counsel has made reliance upon the following judgments:

(i) Jamal Uddin Ahmad Vs. Abu Saleh Najmuddin and Another,

(ii) Joseph Michael v. K. Ramachandran, 1992 (1) LW 198;

(iii) O.P. Singla and Another Vs. Union of India (UOI) and Others,

(iv) Simrathmull and Another Vs. Jugraj and Another, and

(v) In Re: A.K.D. Rangaswami Raja and Another,

Scope of Order 7:

4.1. Order 7 of the Madras High Court Original Side Rules envisages a special procedure in respect of certain Suits. Therefore, it is not meant for

all types of Suits. This position is made clear under Order 7, Rule 1 of the Original Side Rules, Order 7, Rule 1 of the Original Side Rules

categories the types of Suits, that would come under its purview. For example, a Suit to recover the debt or a liquidated demand in the money,

supported by a document or any money payable by the Defendant arising on Negotiable Instruments are few of the Suits that would come under

Order 7, Rule 1 of the Original Side Rules. In other words, if a Suit is not one classified under Order 7, Rule 1, then, it cannot be termed as a

summary Suit. To put it differently, the nature of the Suit and the requirement of the evidence are the required ingredients to bring under Order 7 of

the Madras High Court Original Side Rules.

4.2. Order 7, Rule 2 of the Madras High Court Original Side Rules delineates the procedure to be followed in a Summary proceeding. It reiterates

the position that in a Summary Suit instituted procedure envisaged under Rules 3 to 6 and thereafter, 8 & 9 will have to be followed. The only

exception is Rule 7. The reason is that when an Application filed under Rule 7 is allowed, then the Suit gets treated as an ordinary Suit.

Consequently for exercising such a power, no stage is required. In other words, the power under Rule 7 can be exercised at any time. It is not

controlled by Rules 3 to 6 and thereafter, Rules 8 & 9, in so far as procedures are concerned.

4.3. Rules 3 to 5 of the Madras High Court Original Side Rules are procedural in nature and they also prescribe a period of time limit. Now

coming to the Rule 6 of the Madras High Court Original Side Rules, it gives a right to the Defendant to seek a leave to defend. This right has to be

exercised by way of an Application supported by such evidence. The evidence is the one which a Defendant desires to place before the Court.

Therefore, Rule 6(1) of the Madras High Court Original Side Rules makes it clear that the Defendant has to produce some evidence as he desires

to produce before the Court. Thereafter, the Master may grant a leave to defend. The decision of the learned Master can be conditional or

unconditional as a particular case would warrant. As per Rule 6(3) of the Madras High Court Original Side Rules, the Master shall pass a decree if

the Defendant does not appear or when an application seeking leave to defend is rejected. Therefore, Rule 6 of the Madras High Court Original

Side Rules makes it clear that the Master has to satisfy on the prima facie material to be produced by the Defendant while considering the

Application filed for leave to defend.

4.4. Now let us have a look at Rule 7 of the Madras High Court Original Side Rules. On a very plain reading, it does look to operate totally on a

different field. When a plaint is presented, it would become a Summary Suit only when it is admitted or marked as a Suit under Order 7 of the

Madras High Court Original Side Rules. In other words, the averments made in the Plaint and the nature of the Suit will have to satisfy Order 7,

Rule 1 before getting admitted or marked as a Suit therein. If such a Suit is wrongly marked or admitted as summary, then at any stage it can be

directed to be treated as an ordinary Suit by the order of the Court. Such a power can be exercised by a Court on its own volition or on an

Application by either of the parties. This is the scope of Order 7, Rule 7 of the Madras High Court Original Side Rules.

4.5. Now, let us analyse together all the provisions contained under Order 7 of the Madras High Court Original Side Rules. As discussed above,

the parameters mentioned under Order 7, Rule 6 are distinct and separate. In other words, the Defendant has to satisfy the learned Master that an

application filed under Order 7, Rule 6 of the Madras High Court Original Side Rules is liable to be allowed based upon the evidence produced by

him. Thereafter, the Master can grant either a conditional or unconditional leave. Therefore, the Master is bound to consider the materials

produced by the Defendant. This is the sum and substance of scope of Order 7, Rule 6 of the Madras High Court Original Side Rules. Therefore,

Order 7, Rule 6 of the Madras High Court Original Side Rules cannot escape the rigour of Rules 3 to 5, wherein procedures have been

contemplated to be followed within the time prescribed.

4.6. Hence, we are of the considered view that the attempt made by the Appellant to import of Order 7, Rule 6 of the Madras High Court Original

Side Rules into Order 7, Rule 7 of the Madras High Court Original Side Rules, cannot be accepted, Order 7, Rule 7 of the Madras High Court

Original Side Rules does not speak about any evidence. This power is given to the Court either on its own motion or on an application to be made

by either of the parties to see whether Order 7, Rule 1 is complied with properly. We feel that the words used in Order 7, Rule 7 of the Madras

High Court Original Side Rules that it can be exercised ""at any stage"" and the reference made specifically only to a ""Suit"" coupled with a direction

to the Registry to ""treat a summary Suit as an ordinary Suit"" would have substantial meaning. It merely enables a mistake committed in marking or

admitting a Suit as a summary one to be treated as a regular Suit. It is a procedure for rectification by which the character of the Suit changes.

4.7. While construing a provision, the basic Rule of interpretation is that such a provision either as a whole or in part conveys the purpose and

meaning, intended by the legislation. A Court of law cannot ignore a provision to make it redundant, stale, unworkable and otiose. Considering the

Rule of Harmonious Construction, the Honourable Apex Court in Union of India (UOI) and Others Vs. Brigadier P.S. Gill, has observed as

follows:

Each word used in the enactment must be allowed to play its role howsoever significant or insignificant the same may be in achieving the

legislative intent and promoting legislative object�

4.8. Further more, a provision has to be read in the context of the scheme and not in isolation. The Honourable Apex Court, in O.P. Singla and

Another Vs. Union of India (UOI) and Others, has held as follows:

If the matter were to rest with the Proviso, its interpretation would have to be that it does not prescribe a quota for direct recruits: it only

enables the appointment of direct recruits to substantive posts so that, they shall not hold more than one-third of the total number of substantive

posts in the Service. However, it is well recognised that, when a Rule or a Section is a part of an integral scheme, it should not be considered or

construed in isolation. One must have regard to the scheme of the fasciculus of the relevant Rules or Sections in order to determine the true

meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other inter-related provision becoming

otiose or devoid of meaning. That makes it necessary to call attention to the very next Rule, namely, Rule 8. It provides by Clause 2 that:

The seniority of direct recruits vis-�-vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and

promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available vacancy will be filled by a

direct recruit and the next two vacancies by promotees and so on.

(Emphasis supplied)

This provision leaves no doubt that the overall scheme of the Rules and the true intendment of the Proviso to Rule 7 is that one-third of the

substantive posts in the Service must be reserved for direct recruits. Otherwise, there would neither be any occasion nor any justification for

rotating vacancies between direct recruits and promotees. Rule 8(2), which deals with fixation of seniority amongst the members of the Service,

provides, as it were, a key to the interpretation of the proviso to Rule 7 by saying that the Proviso prescribes ""quotas"" and reserves vacancies for

both categories. The language of the proviso to Rule 7 is certainly not felicitous and is unconventional if its intention was to prescribe a quota for

direct recruits. But the Proviso, as I have stated earlier, must be read along with Rule 8(2) since the two provisions are interrelated. Their

combined reading yields but one result, that the Proviso prescribes a quota of one-third for direct recruits.

Therefore, applying the Rule of Interpretation, we have no hesitation in holding that Order 7, Rule 6 of the Original Side Rules cannot be imported

into Order 7, Rule 7.

4.9. What the Appellant seeks before us is to avoid not only Order 7, Rule 6 of the Original Side Rules but the other provisions of Order 7 as

well. In other words, what he seeks is a remedy notwithstanding the period of limitation provided under Order 7 for making an Application seeking

leave to defend. Such a course adopted by the Appellant cannot be permitted in law. As discussed above, the assessment of evidence can never

be an issue under Order 7, Rule 7 of the Original Side Rules. In other words, it is applicable only for a rectification of an earlier decision in

admitting or marking a Suit as a Summary Suit. It is akin to the power of review. This has to be decided based upon the averments in the Plaint

alone. Perhaps that is the reason why Order 7, Rule 7 of the Original Side Rules does not speak about leave at all. It does not deal with the right of

the Defendant to seek leave. On the contrary, it deals with proper exercise of the right of the Plaintiff to maintain a Summary Suit. Therefore, we

have no hesitation in holding that the Defendant, who has not filed an Application under Order 7, Rule 6 of the Original Side Rules, cannot file an

Application under Order 7, Rule 7 of the Original Side Rules seeking to raise issues covered in the earlier Rule into the subsequent Rule. Similarly

he cannot be permitted to get over the period of limitation prescribed by making an Application under Order 7, Rule 7 of the Original Side Rules.

The averments made in the present case are not sufficient to invoke Order 7, Rule 7 of the Original Side Rules. In other words, the averments

made by the Appellant are not pertaining to non conformity of a Summary Suit covered under Order 7, Rule 1 of the Original Side Rules. When

the Appellant has not filed the Application under Order 7, Rule 6 of the Original Side Rules within the time prescribed, then he loses his right to

defend the Suit. The moment such a right is lost, resultantly a right accrues to the Plaintiff to get a decree on the averments made in the Plaint. Such

a right accrued is a vested right. It vests with the Plaintiff under the statute. Therefore, it cannot be nullified by taking recourse to another provision,

which does not authorise the Defendant to seek leave on the basis of the evidence sought to be produced by him.

Maintainability of the Application:

4.10. We are not inclined to go into the other issue raised by the learned Counsel for the Appellant that the learned Master is not competent to

decide the Application under Order 7, Rule 7 of the Original Side Rules. This we do so, in view of the express provisions contained under Order

14, Rules 7 to 9 of the Original Side Rules, where the power is given to the Court to exercise. We are also aware of the fact that the learned

Master is also a Court as defined under the Rules. Further more, as held by the Honourable Division Bench of this Court in D. Gopalan Vs.

Raghava Naicker and others, it would not vitiate the order passed by the Court. The learned Counsel appearing for the Respondent also did not

seriously dispute the power of the Court to deal with the Application. Hence, we do not wish to decide the said issue.

Maintainability of the Appeal:

Even though we are not inclined to allow this Appeal for the reasons stated in the preceding paragraphs, as the learned Counsel appearing for

the Respondent has raised the issue of maintainability, we wish to go into the same. The word ""Judgment"" has not been defined under the Letters

Patent/Original Side Rules. While deciding this issue, we have to see the effect of the order which is made. In other words, the form of adjudication

is not relevant but the consequence of such an order is. Considering the said issue, a Division Bench of this Court in Sri Raja Rao Venkatakumara

Mahipathi Surya Rao Bahadur Varu Vs. Sri Rajah Rao Venkata Mahipathi Gangadhara Rama Rao, after quoting with approval of the earlier

decision, has held as follows:

Without laying down any general proposition that a leave to sue is always a judgment under Clause 15, Letters Patent, and therefore subject to

Appeal, we think that in any particular case the proper test as to whether the order is or is not a judgment has been laid down by the late Chief

Justice Sir Arnold White in Tuljaram Row v. Alagappa Chetti, a ruling which has been consistently adopted in this Court as laying down the guiding

principle. There at p.7 he says:

The test seems to me to be not what is the form of the adjudication but what is its effect in a Suit or proceeding in which it is made. If its effect,

whatever its form may be and whatever may be the nature of the Application on which it is made, is to put an end to the Suit or proceeding so far

as the Court before which the proceeding so far as the Court before which the Suit or proceeding is pending is concerned, or if its effect, if it is not

complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause.

In that view it appears to us that is cannot be maintained with reason that the grant of leave to sue is not a judgment within the meaning of Clause

15, Letters Patent, if the order has finally shut out the Defendant from now applying or being heard on the question that the Suit should have been

so dismissed on the point of jurisdiction. If this refusal to dismiss the Suit is in effect a final judgment against a dismissal of the Suit on the ground of

jurisdiction, a judgment which cannot be attacked in Appeal because the matter of jurisdiction will not ex hypothesi be made a matter of issue in

the Suit, then it will in our view be a judgment within the scope of the test set out in Tuljaram Row V. Alagappa Chetti. But if the question of the

jurisdiction of this Court to entertain the Suit is still open for decision at the trial of the Suit, then in our view the order passed is not of a final nature

and would not be a judgment. Mr. Grant for the Plaintiff stated before us that the Plaintiffs position was that the question of jurisdiction is still open

for decision on an appropriate issue in the Suit. The Defendant''s learned Vakil was doubtful if that was so and whether the order granting leave to

sue did not finally dispose of the question of jurisdiction. That we think is not necessarily so. A Court has always jurisdiction to try on an

appropriate issue in a Suit whether it has jurisdiction or not to try the Suit; that is to set in motion the process by which the various points at issue

between the parties including that of jurisdiction fall to be decided.

5.2. The issue raised by the learned Counsel appearing for the Respondent is no longer res integra. Clause 15 of the Letters Patent Appeal

provides for an Intra-Court Appeal. While considering such a clause, this Court cannot give a hyper technical interpretation to the word

judgment"". In other words, a right created under the statute cannot be taken away. A judgment can be termed as a final judgment which brings a

lis to an end. Similarly a preliminary judgment will decide the particular issue one way or other, even though the Suit would continue. A preliminary

judgment will also have an effect of adversely affecting the valuable right of the party. An interlocutory or internal judgment, which also directly

affects the Defendant in a case where he loses his right to defend and his remedy is confined only to contest the Plaintiffs case, without being given

a chance of rebut the evidence, is also appealable. Considering the said issue, the Hon''ble Apex Court in Shah Babulal Khimji Vs. Jayaben D.

Kania and Another, has held as follows:

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 of course that the judgment must be a formal adjudication which conclusively

determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the CPC seems

to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word

''judgment'' as used in Clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms ''order'' or ''decree'' anywhere.

The intention, therefore, of the givers of the Letters Patent was that the word ''judgment'' should receive a much wider and more liberal

interpretation than the word ''judgment'' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a Trial

Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It

seems to us that the word ''judgment'' has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can

be of three kinds:

(1) A Final Judgment-a judgment which decides all the questions or issues in controversy so far as the Trial Judge is concerned and leaves nothing

else to be decided. This would mean that by virtue of the judgment, the Suit or action brought by the Plaintiff is dismissed or decreed in part or in

full. Such an order passed by the Trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even

amounts to a decree so that an Appeal would lie from such a judgment to a Division Bench.

(2) A preliminary judgment-This kind of a judgment may take two forms-(a) where the Trial Judge by an order dismisses the Suit without going

into the merits of the Suit but only on a preliminary objection raised by the Defendant or the party opposing on the ground that the Suit is not

maintainable. Here also, as the Suit is finally decided one way or the other, the order passed by the Trial Judge would be a judgment finally

deciding the cause so far as the Trial Judge is concerned and therefore appealable to the Larger Bench, (b) Another shape which a preliminary

judgment may take is that where the Trial Judge passes an order after hearing the preliminary objections raised by the Defendant relating to

maintainability of the Suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the Suit, absence of notice u/s 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 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 Order 43, Rule 1 but which also possess the characteristics and trappings of

finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding.

Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.

For instance, where the Trial Judge in a Suit under Order 37 of the CPC refuses the Defendant leave to defend the Suit, the order directly affects

the Defendant because he loses a valuable right to defend the Suit and his remedy is confined only to contest the Plaintiff''s case on his own

evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the Defendant it will undoubtedly

be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a Larger Bench. Take the converse case in a similar

Suit where the Trial Judge allows the Defendant to defend the Suit in which case although the Plaintiff is adversely affected but the damage or

prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the Plaintiff still possesses his full right to

show that the defence is false and succeed in the Suit. Thus, such an Order passed by the Trial Judge would not amount to a judgment within the

meaning of Clause 15 of the Letters Patent but will be purely an Interlocutory Order.

5.3. Similarly in Subal Paul Vs. Malina Paul and Another, the Honourable Apex Court has held as follows.

In Subal Paul v. Malina Paul this Court held:

While determining the question as regards Clause 15 of the Letters Patent, the Court is required to see as to whether the order sought to be

appealed against is a judgment within the meaning thereof or not. Once it is held that irrespective of the nature of the order, meaning thereby

whether interlocutory or final, a judgment has been rendered, Clause 15 of the Letters Patent would be attracted.

The Supreme Court in Shah Babulal Khimji case deprecated a very narrow interpretation of the word ''judgment'' within the meaning of Clause

15.

This Court said: (SCC pp. 45-46, para 82)

A Court is not justified in interpreting a legal term which amounts to a complete distortion of the word ""judgment"" so as to deny Appeals even

against unjust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals. In such

cases, a just balance must be struck so as to advance the object of the statute and give the desired relief to the litigants, if possible.

In Shah Babulal Khimji case, the Apex Court in no uncertain terms referred to the judgment under the Special Act which confers additional

jurisdiction on the High Court even in internal Appeals from an order passed by the Trial Judge to a Larger Bench. Letters Patent has the force of

law. It is no longer res integra. Clause 15 of the Letters Patent confers a right of Appeal on a litigant against any judgment passed under any Act

unless the same is expressly excluded. Clause 15 may be subject to an Act but when it is not so subject to the special provision the power and

jurisdiction of the High Court under Clause 15 to entertain any Appeal from a judgment would be effective.

5.4. The abovesaid two Judgments of the Honourable Apex Court were quoted with approval by the subsequent Judgment in Liverpool and

London S.P. and I Asson. Ltd. Vs. M.V. Sea Success I and Another, , wherein it has been held as follows:

The view taken by the Calcutta and Bombay High Courts that an order passed in terms of Order 37 of the CPC granting leave to defend

would not be a judgment within the meaning of Clause 15 of the Letters Patent may not be of much relevance

The submission, however, to the effect that in the Suit all defences would be open to the Defendant, in our opinion, is misconceived inasmuch

as, no evidence can be adduced in absence of any pleading. There may not, furthermore be any requirement to go into the trial if the Plaint does

not disclose a cause of action.

The contention that an order refusing to reject a Plaint is one akin to an order amending the Plaint would not be a correct proposition of law.

The question as to whether the Defendant despite such an order refusing to reject a Plaint will have a right to show that the case is false would

again be of no consequence. The said submission, in our opinion, is based on a wrong premise.

An order refusing to grant leave to a Defendant to defend the Suit would be passed when it is found that the defence is a moonshine.

Clause 15 of the Letters Patent is not a special statute. Only in a case where there exists an express prohibition in the matter of maintainability

of an Intra-Court Appeal, the same may not be held to be maintainable. But in the event there does not exist any such prohibition and if the order

will otherwise be a ""judgment"" within the meaning of Clause 15 of the Letters Patent, an Appeal shall be maintainable.

What would be a judgment is stated in Shah Babulal Khimji as under: (SCC p. 45, paras 80-81)

''We think that ""judgment"" in Clause 15 means a decision which affects the merits of the question between the parties by determining some right

or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole

cause or Suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.''

An analysis of the observations of the Chief Justice would reveal that the following tests were laid down by him in order to decide whether or

not an order passed by the Trial Judge would be a judgment:

(1) a decision which affects the merits of the question between the parties;

(2) by determining some right or liability;

(3) the order determining the right or liability may be final, preliminary or interlocutory, but the determination must be final or one which decides

even a part of the controversy finally leaving other matters to be decided later.

Therefore, in view of the said categorical pronouncements of the Honourable Apex Court, we have no hesitation in holding that an Appeal against

the decision rendered under Order 7, Rule 7 of the Original Side Rules is certainly appealable under Clause 15 of the Letters Patent.

Discussions on fact:

In the case on hand, the Appellant has given a solemn undertaking before the Court. The undertaking is not conditional. Therefore, we are of the

view that Section 58 of the Indian Evidence Act, 1872 will have to be pressed into service, The fact alleged by the Plaintiff regarding the quantum

of money payable on cheques has been admitted in writing by the Appellant. We do not find any merit in the defence sought to be raised by the

Appellant in the Application filed under Order 7, Rule 7 of the Original Side Rules to the effect that he was forced to give such an undertaking.

Admittedly, the undertaking has been signed, both by the Counsel and the Appellant. We do not find any coercion or undue influence involved

therein. Therefore, in view of the admission, the fact alleged by the Plaintiff need not be proved in accordance with Section 58 of the Indian

Evidence Act, 1872. Therefore, we respectfully concur with the findings of the learned Single Judge on merits. We also reject the submission of the

learned Counsel for the Appellant made in his reply before us on the Application said to have been made under Order 7, Rule 6 of the Original

Side Rules which was said to be not represented after return. The said issue is not before us. Moreover the present Application under Order 7,

Rule 7 of the Original Side Rules has been filed subsequently. Hence, the Appellant has duly given up his earlier Application. Above all, the present

Application was considered on merits as warranted by him and dismissed. The Appellant has not also raised any issue about the earlier Application

which was not represented before the learned Single Judge.

In the result, the Original Side Appeal fails and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.