Susheela Devi vs Padma Devi

J.N. Bhat, J.—This is a Letters Patent Appeal against an order of a single Judge of this Court (Ali, J.), dated 17-11-1966, whereby the learned Judge amongst other things has decided that an additional issue raised by him in this case on 29-9-1966 which was to the following effect:

Whether on the facts and circumstances of this case the suit stands adjusted in full as alleged by the defendants? OPD be tried along with other issues. A preliminary objection has been taken that this order is not a judgment within the meaning of Cl. 12 of the Letters Patent and, therefore, the present appeal does not lie.

The brief facts relevant for the disposal of this preliminary objection are that, while the suit was going on between the parties in the trial Court, on 23-12-1965, it was stated by the parties before the Court that an attempt was afoot to get the case compromised. The learned Judge fixed 10th March 1966 as the date in the case. On 13th January 1966, when again this request was made to the Court, it was directed that the parties should report the compromise to the Deputy Registrar before 1st February 1966. No such intimation was given to the Deputy Registrar and nothing about a compromise was stated on a number of hearings in the case which took place on 14th April 1966, 16th April 1966, 28th April 1966, 13th and 14th June 1966. The evidence of a number of witnesses for the plaintiff was recorded by the trial Court. On 28th June 1966 an application was presented that the parties had entered into a compromise on 23rd April 1966 in Delhi. On this application the plaintiff filed her objections on 27-9-1966 wherein any such compromise having been arrived at was altogether denied. On 29th September 1966 the issue mentioned above was added by the learned Judge who ordered that this issue be tried along with other issues and the defendants were directed to lead their evidence. On 14th November 1966, an application was presented by the learned counsel for the defendant that this additional issue be tried as a preliminary issue. There were some other applications pending before the trial Court which were ultimately disposed of by its order dated 17th November 1966 which is the subject-matter of this appeal. The only grievance of the learned counsel is with respect to that portion of the order whereby the application of the defendant for trying the additional issue as a preliminary issue has been refused.

Mr. Mahajan, the learned counsel for the appellant, in order to overcome this objection of the respondent has stated that the word 'judgment' should be very liberally construed and any order which decides some important point would be construed as a judgment. His argument is based on the wording of O. 23, R. 3 of the Civil P.C. Under that rule, when it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit. According to Mr. Mahajan, if the trial Court had recorded evidence with respect to the additional issue and come to the conclusion that the suit had been lawfully compromised, it was bound to pass a decree in terms thereof.

Therefore, the refusal of the Court to try the additional issue as a preliminary issue should be construed to be a judgment and therefore this appeal is maintainable.

In support of his argument Mr. Mahajan referred to the following authorities:

P.V. Rao Vs. Ahmed Haji Noormahomed Latiff, ; Durgaprasad Vs. Kantichandra Mukerji, ; AIR 1942 95 (Lahore); Jivanlal Narsi Vs. Pirojshaw

R. VakHaria and Co., Bom 85; A Sonachalam Pillai and Others Vs. Kumaravelu Chettiar and Others, and State of Uttar Pradesh Vs. Dr. Vijay Anand Maharaj, .

He also referred to Halsbury's Laws of England, Vol. 22, p. 740. According to Halsbury, the definition of a judgment under paragraph 1603 is given as under:

The terms 'judgment' and 'order' in their widest sense may be said to include any decision given by a Court on a question or questions at issue between the parties to a proceeding properly before the Court. The terms as used in this title exclude decisions of a Court in criminal as opposed to civil matters; and such decisions of the Court in civil matters as do not determine the main question or questions at issue between the parties for the determination of which resort has been had to the Court, but only determine preliminary or subsidiary questions relating to procedure, are not considered here in detail.

The same learned author under para

No. 1609 says:

Generally speaking, an appeal from a final judgment of a Judge lies to the Court of Appeal without leave, but, with certain exceptions, no appeal lies from the interlocutory judgment or order of a Judge without the leave of the Judge or Court of Appeal.

In P.V. Rao Vs. Ahmed Haji Noormahomed Latiff, , although cited by Mr. Mahajan in support of his argument, it was laid down that an order of the Judge should be a judgment within the meaning of Clause 15 of the Letters Patent and it must effect the merits of the question between the parties by determining some right or liability. Therefore, in our opinion this case does not support him.

In Durgaprasad Vs. Kantichandra Mukerji, , it has been held that an order refusing to stay the suit to which the provisions of Section 10 apply is a judgment within the meaning of CI. 15 of the Letters Patent and is appealable. But there are numerous authorities to the contrary which will be discussed later.

In AIR 1942 95 (Lahore) , a Full Bench of the Lahore High Court laid down that the word judgment is not synonymous with a decree. Clause 10 contemplates orders other than a judgment or a decree. Whether an order amounts to a judgment in CI. 10 must be considered on the facts and circumstances of each case. An order determining the forum in which the suit will be tried amounts to a Judgment within CI. 10 and is therefore appealable. It was further held that an order refusing to transfer a suit is a judgment within the meaning of CI. 10 and therefore is appealable.

So far as the first point decided in this case is concerned, there can be no dispute about it. But the second point, namely, that an order refusing to transfer a suit is a judgment cannot be held to be good law in view of the Supreme Court authority Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, which shall be discussed hereinafter.

Jivanlal Narsi Vs. Pirojshaw R. VakHaria and Co., pertains to the decision of a Judge under S. 10, Civil P.C. and it has been held to be a judgment, but this view has not been accepted in a number of other cases decided by other High Courts.

The Madras authority (supra) decides that an appeal lies under the Letters Patent against an order of a single Judge refusing the stay of execution pending the execution of an appeal or second appeal in the Court. But this authority has been considered in later cases decided after this authority.

The Supreme Court authority (supra) was a case under the U.P. Agricultural income tax Act, 1948 (3 of 1949). Under that Act an Additional Collector made an order of assessment, which was set aside under Art. 226 by a single Judge of the Allahabad High Court on the ground that the assessment was without jurisdiction. An application for review made to the single Judge who had passed an order under Art. 226 was dismissed on the ground that the U.P. Act 14 of 1956 did not apply to orders under Art. 226. An appeal against the order was taken to a Division Bench but was dismissed on grounds (1) that the order dismissing review application was not a judgment within the meaning of Chap. VIII, R. 5 of the Allahabad High Court Rules and was not, therefore, appealable and (2) that the U.P. Act 14 of 1956 had no application to an order made under

Art. 226. In the appeal by special leave before the Supreme Court it was held that the application under Art. 226 was not a proceeding under the principal Act, i.e., U.P. Agricultural income tax Act (supra) nor a continuation of a proceeding under the Act, and S. 11 of the Act, therefore, did not apply to the order of the single Judge under Art. 226.

In this case it was further held by a majority of Judges that the order of the Division Bench dismissing the application for review of the order under Art. 226 was a 'judgment' within the meaning of CI. 10 of the Letters Patent, as the new Act created a right and the order decided a question relating to this right and the order was, therefore, appealable. In this case their Lordships referred to a number of other authorities. So even this authority cannot help the appellant because in this case, as would appear later in the judgment, no right of either party has been finally determined.

These are the authorities cited by the learned counsel for the appellant.

What is a judgment for purposes of Letters Patent has been the subject-matter of discussion in numerous authorities of the different High Courts. It can safely be said that there is no unanimity of judicial opinion on this score.

The Courts have off and on tried to define what a judgment for purposes of Letters Patent means, but it seems that every time the Courts have avoided giving an exhaustive definition of the word 'judgment' and have tried to apply the tests to the particular facts of each case. However, in a very elaborate authority of the Madras High Court in ILR (1912) Mad 1, Sir Arnold White, C. J., tried to define what a judgment for this purpose should be. His Lordship observed:

The test seems to me to be not what is the form of the adjudication but what is its effect in the 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 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. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication 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 of a Receiver is a judgment within the meaning of the clause.

This judgment is considered to be a standard authority on the subject and has been followed more or less uniformly by most of the Courts so far.

In this case the learned Chief Justice has definitely held that an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in a suit is not a judgment within the meaning of the Letters Patent.

The Supreme Court also had occasion to interpret the word 'judgment'. In Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, , their Lordships said in para 9 of the Judgment:

In view of this wide divergence of judicial opinion, it may be necessary for this Court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word 'judgment' as it occurs in CI. 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts.

The same difficulty was experienced by their Lordships in para (12):

As already stated, it is not our purpose in the present case to frame an exhaustive definition of the word 'judgment' as used in CI. 15 of the Letters Patent. We have indicated what the essential features of a judgment are according to both the Calcutta and Madras High Courts and all that we need say is that in our opinion, an order under CI. 13 of the Letters Patent does not satisfy the tests of a 'judgment' as formulated by either of these High Courts.

Therefore, even the Supreme Court in the conflict of decisions on this point has not so far been able to finally give a comprehensive and a final interpretation to the word 'judgment' as used in the Letters Patent of the different High Courts. But this judgment has laid down two tests which are to the effect (1) an order, in order to be a judgment within the meaning of the Letters Patent, should terminate the suit or the proceedings, or (2) affect the merits of the controversy between the parties in the suit itself. But if it is only an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit, it is not a judgment at all. In the Supreme Court case (supra), however, the point decided was that an order for the transfer of a suit which was made under CI. 13 of the Letters Patent was not a judgment within the meaning of CI. 15 of the Letters Patent and therefore was held not to be appealable, because it neither affected the merits of the controversy between the parties in the suit itself nor did it terminate or dispose of the suit on any ground.

It may be stated that basically there are three views as to what constitutes a judgment. A decision according to one view will amount to a judgment if it determines some right or liability affecting the merits of the dispute between the parties. According to the second the essential requirement is that it puts an end to the proceedings, so far as the Court in which those proceedings are pending is concerned, and according to the third view a judgment means a decree which determines the rights of the parties in any matters in dispute.

Even this Court in 1965 Kash LJ 244 = (AIR 1965 J&K 118) has had occasion to consider the meaning of the word 'judgment' as understood in the Letters Patent, and has reviewed a number of authorities discussing this point. Some of the authorities which favour a liberal view of the interpretation of the term 'judgment' may be mentioned as under:

AIR 1959 J&K 139; AIR 1928 Rang 20; Shorab Merwanji Modi and Another Vs. Mansata Film Distributors and Another, ; AIR 1949 1 (Federal Court); National Textiles Vs. Premraj Ganpatraj, ; Union of India (UOI) Vs. Khetra Mohan Banerjee, and Sattemma Vs. Vishnu Murthy,

Out of the authorities that we come across on the definition of the word 'judgment' two authorities, namely, K.G. Rangaswami Chettiar and

Co. and Others Vs. K.R. Eswaramurthy Goundar, and Standard Glass Beads Factory and Another Vs. Shri Dhar and Others, have exhaustively dealt with the case-law on the subject and in the latter authority in our opinion almost the whole case has been reviewed. The Madras authority was considering a case in which an order under S. 10, Civil P.C. staying a suit was concerned. Their Lordships held that an order made under S. 10, Civil P. C., or any other provision of law for the stay of a trial of a suit is not a judgment within the meaning of that term in CI. 15 of the Letters Patent and would therefore not be appealable.

Similarly in the Allahabad authority the majority held that an order of a single Judge of the High Court dismissing an appeal against an order granting temporary injunction was a judgment, but Srivastava, J., who wrote a more exhaustive judgment than the majority judgment disagreed with this view. A few more authorities only need be mentioned.

In In Re: Girindra Kishore Jha Bettiah, , an order passed u/s 301, Succession Act, was held not to be a judgment.

In Smt. Chando Devi Vs. Municipal Committee, Delhi, , an order setting aside an abatement was held not to be a judgment.

Similarly, in Sriramachandra Murthi Vs. Mahalakshmamma and Others , an order dismissing an application under S. 10, Civil P. C., was held not to be a judgment.

In Gaganmal Ramchand Vs. The Hongkong and Shanghai Banking Corporation, , an order allowing an amendment was held not to be a judgment.

There are many other authorities which need not be multiplied.

Applying the broad tests laid down by the Supreme Court and by the different High Courts to the facts of this case, let us examine whether the order complained of amounts to a judgment or not. We have clearly shown that the authorities relied upon by Mr. Mahajan do not at all support

him. In addition to the authorities cited by him, we have cited some more authorities which favour a rather liberal construction of the term 'judgment' as used in the Letters Patent. According to Mr. Mahajan, under O. 14, R. 2, read with O. 23, R. 3, the learned Judge was bound to decide the additional issue first. The relevant provisions of O. 23, R. 3, have been quoted above. We might in passing refer to O. 14, R. 2 also.

This rule contemplates that, when both issues of law and fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try that issue first. This rule contemplates that the suit should be capable of being disposed of on issue of law only, where, however, facts have to be inquired into and evidence has to be taken or where there are mixed questions of law and fact, they shall not be tried as preliminary issues. The law as laid down by various authorities on this point is that, where an appealable case is tried by a Court and when issues of fact are involved, the proper procedure is that evidence on all issues should be taken in order to obviate the necessity of piecemeal trial of cases, and where an issue which is primarily an issue of fact is involved in a case, it should not as a rule be tried as a preliminary issue. Reference may in this connection be made to AIR 1962 Mys 108; Sayyed Shah Abdul Latif Mohideen Khadiri Sujjatha Shibathullahi Sahib Vs. Mohammad Labbai and Others, ; Shivshankar Chhaganlal Shukla Vs. Laxman Chimanlal Soni, ; Sowkabai Pandharinath Rajapurkar Vs. Sir Tukojirao Holkar, so on.

Here the learned Judge has not decided any matter which affects the merits of the case; he has not decided any issue which finally terminates the proceedings of the case before him. All that he has said is that this issue may be tried along with other issues. Without meaning any reflection on the merits of the alleged compromise, it is interesting to note that the compromise is alleged to have been effected in April 1966. An application in regard to this alleged compromise was put in the Court as late as 28-6-1966 and even after that date till the additional issue was framed, on 29-9- 1966, evidence of the plaintiff was being recorded and no objection was taken by the present appellant who was propounding this compromise to the evidence of the plaintiff being recorded. On 29-9-1966 also the appellant did not raise any serious objection to the additional issue being tried along with other issues as contained in the order of the Court of that date. In the order under appeal all that the learned Judge has said is that the additional issue be tried along with the other issues already framed in the case. He has not decided any matter; he has only disposed of a matter which is a mere step towards obtaining a final adjudication in the suit and, therefore, according to all the authorities cited above, this order cannot by any stretch of imagination be designated as a judgment. If the learned Judge had, after taking evidence, come to the conclusion that, although a compromise was arrived at, refused to record the same, that would be a judgment and may be held to be appealable. That stage has not at all come yet. All that the learned Judge has directed is that the evidence may be produced with respect to the additional issue as well as other issues so that, when the case is finally decided, recourse may not be taken to piecemeal decision and piecemeal appeals in the same case. The suit has not been finally decided by this order, nor has any important matter which decides the merits of the case been disposed of by the order under appeal.

Therefore, in our opinion, the order passed by the trial Court which is the subject-matter of this appeal is not a judgment within the meaning of

CI. 12 of the Letters Patent. This appeal is, therefore, not competent and maintainable and is hereby dismissed.