AI Structured Summary
Not yet generated for this judgment
Judgment
Banerjee, J.—A short but interesting question of law falls for consideration in this appeal which is directed against an order passed by the learned single Judge dismissing an application under order 7 Rule 11 for rejection of plaint so far as the appellant is concerned. Mr. Kar appearing for the respondent at the initial stage raised a preliminary objection as regards the maintainability of the appeal since the order under appeal cannot be termed to be a judgment within the meaning of Clause 15 of the Letters patent. Mr. Kar submitted that the order of the learned trial Judge has. not decided the disputes finally in any way "affecting the merits of the matter and all the issues have been kept open by the learned trial Judge for being adjudicated in the suit.
Before adverting to the rival contentions a brief reference to the factual aspects ought to be noted at this juncture. The plaintiff being the respondent herein has instituted a suit inter-alia against the Steel Authority of India Ltd., National Insurance Co. Ltd. and the appellant for a Rs. 3,75,303. SOP with interim interest and interest on judgment at the rate of 12% per annum. Alternatively, the plaintiff has prayed "or an enquiry into damages suffered by the plaintiff and decree for such amounts as may be found due and payable. The plaintiff has also prayed for appointment of a Receiver and also for an order of injunction. In the suit the appellant herein moved an application inter-alia for the following reliefs :-
a) The plaint filed in the present suit as against the defendant No. 2, be rejected; b) Alternatively the suit as against the defendant no. 2, be dismissed.
c) An order of injunction be issued restraining the plaintiff from taking any or any further steps in this suit as against the defendant no. 2, till the disposal of the present application;
d) alternatively art order be made and/or directions given directing that the present suit be not transferred to the list of undefended suit as against the defendant no. 2.
e) Ad-interim order in terms of the prayers (c) and (d) above;
f) Suitable provisions be made as to the costs of and incidental to this application;
g) Such further or other order or orders be made and/or direction or directions be given as in the premises would be just.
On the factual score further it appears ''that the claim of the plaintiff is against the appellant arose out of loss and damage sustained by. plaintiff for allleged non delivery of 41 bundles of M.S. channels carried by the "Vishawnesh" under two bills of lading being No. 1 any 3 dated 2nd July, 1982 from In Korea to Calcutta. It further appears that the Calcutta Port Trust have issued a short landing certificate certifying that 44 bundles of the above noted materials were short delivered. The appellant contended before the learned Judge that the vessel on the particular voyage arrived at the Port of Calcutta on 17th July, 1982 and sailed away from the Port after delivery of cargo on 3rd August, 1982 and that since the contract of carriage of cargo on 3rd August, 1982 and that since the contract of carriage was recorded in the bill of lading and since the bills of lading stipulate that the proper law of contract would be the law of the Flag that is to say, the law of the country in which the carrier has been registered, the carrier vessel in the instant case being an Indian vessel, the Indian law ought to be made applicable. According to the appellant under Article 111 Rule 6 of the Hague Rules, the carrier and the ship shall be discharged from all liabilities in respect of loss and damage unless the suit is brought within one year after delivery of the goods or the date when the goods could have been delivered. Indian Carriage of Goods by Sea Act, 1925 has given statutory recognition to the Hague Rules and also contains similar and indentical provision. The appellant thus made an application contending that since the suit had been instituted beyond the period of one year after delivery of the goods, the suit was barred by the law of limitation as against the appellant, the plaint filed in the suit should be rejected and the suit as against the appellant should be dismissed.
The learned trial Judge however while dealing with the matter made no order on the application and while passing the order made the following observations : -
On the facts of this case, whether the suit barred by limitation under the Hague Rules or unr the provisions of the Indian Carriage of Goods by Sea Act cannot be found out from the statements in the plaint as the said provisions have not been set out nor mentioned in the plaint. The two Bills of lading are not annexed to the plaint nor the date of arrival of the ship or the date of its departure from Inchem, Korea could be found out from the averments in the plaint, I have no hesitation to hold that this plaint cannot be rejected under order VII Rule 11(d)'' as the statements in the plaint do not show that the suit is barred by limitation.
It is this order which is under, appeal before this Court on which the preliminary plaint as noted above has been taken by the learned Advocate appearing for the plaintiff. The issue as regards the appealability has had considerable judicial attention for quite sometime. Long catena of cases of which we shall presently refer to deal with the issue as to whether an order can be termed to be a judgment within the meaning of Clause 15 of the Letters Patent or not.
The Supreme Court as early as in the year 1953 in the case of Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, observed : -
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 so much definiteness as possible the true meaning and scope of the word ''judgment'' as it occurs in Clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a ''judgment'' within the meaning of Clause 15 of the Letters Patent -
Further, in a recent decision of the Supreme Court in the case of Shah Babulal Khemji vs. Jayaben (AIR 1981 3C 1786) the Supreme Court in paragraph 120 of the report at page 1817 has laid down certain guiding principles by was of illustrations of interlocutory orders which may be treated as a judgment within the meaning of Clause 15 of the Letters Patent and the same are tabulated here-inbelow; -
1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes, away a vested right of limitation or any other valuable right accrued to the defendant.
2) An order rejecting the plaint.
3) An order refusing leave to defend the suit in an action under Order 37 Code of civil Procedure.
4) An order rescinding leave of the trial Judge granted by him under Clause 12 of the Letters Patent.
5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice u/s 80, bar against competency of the suit against the defendant even though the suit is kept alive.
6) An order rejecting an application for a judgment on admission under Order 12 Rule 6.
7) An order refusing to add necessary parties in a suit u/s 92 of the Code of Civil Procedure.
8) An order varying or amending a decree.
9) An order refusing leave to sue in forms pauperis.
10) An order granting review.
11) An order allowing withdrawal of the suit with liberty to file a fresh one.
12) An order holding that the defendants are not agriculturists within the meaning of the special law.
13) An order staying or refusing to stay a suit u/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-fee against the plaintiff.
As an illustration item 2 has been stated that an order rejecting the plaint may be treated or ought to be treated as a judgment within the meaning of Clause 15 since it affects the merits of the matter and decides the issue finally.
Mri Kar appearing for the plaintiff submitted that in the event Supreme Court wanted to have the converse situation to be held to be a judgment within the meaning of Clause 15 then the Supreme Court could have necessarily mentioned the same and omission to do so obviously means and implies that the Supreme Court has itself rejected the very thought of dsclaring an order to be a judgment within the meaning of Clause 15 in the matter when the plaint has not been rejected.
Mr. Mitra appearing in support of the appeal, however, drew the attention of this Court to paragraph 113 -appearing at page 1815 of the report in particular subparagraph (2).
For convenience sake sub-paragraph (2) of paragraph 113 is set out hereinbelow : -
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 ma infest 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 a larger Bench.
Strong reliance was placed on this observation of the Supreme Court to the effect that an order even though it keeps the suit alive for deciding an important aspect of the trial which affects a vital right of the defendant ought to be construed to be a judgment, so as to be appealble to a larger Bench.
Mr. Mitra submitted that law enjoins that there would be contingent extension of liability so far as the shipping is concerned in terms of the provisions of the Carriage of Goods by Sea Act, 1925 and by reason of such extension of liability, the defendant has, in fact, acquired a valuable right which ought not to be lost sight of and such dismissal of application for rejection of a plaint being barred under Order VII Rule 11(d) of the Code cannot but. be termed to be a judgment within the meaning of Clause 15 of the Letters Patent and hence, appealable.
while it is true that the Supreme Court has stated in no uncertain terms that vital affectation of right may be termed to be a judgment, but it shall nave to be considered as to whether there is, in fact, such affectation of right by the order passed by the learned Trial Judge, section 104 read with Order 43 of the Code prescribes as to which of the orders are appealable in nature. Admittedly refusal to reject a plaint under Order VII Rule 11(d) does fall within the category of such an appealable order. Hence, we shall have to fall back upon the general doctrine of an order being appealable in the event the same can be termed to be a judgment within the meaning of Clause 15 of the Letters Patent.
It is now well settled principle of law that in order to be a judgment within the cleaning of Clause 15 of the Letters Patent, the decision must be a decision affecting merits of the disputes bat we en tie parties, by determining the same right or liability although it might be either final or preliminary or interlocution. (vide a Bench decision of this Court in the case of Prahladrai Agarwalla and Others Vs. Sm. Renuka Pal and Others,
In view of the decision in the Prohlad Roy''s case (supra), it is not necessary to dilate much on this score since the Bench decision, in fact, has dealt with more or less all the relevant cases on the subject though, however Unfortunately, the decision in Shah babulal Khimji''s case (supra) has not been taken note of. But, in out. view, considering the observation of the Supreme Court in Khimji''s case (supra), there is no difference of opinion expressed between this Court and the Supreme Court in the above noted two decisions, more so, by reason of observation of the Supreme Court in paragraph 113, in particular, sub-paragraph (3). In sub-paragraph (3) the Supreme Court observed.
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.
On the above enunciation of law by, the Supreate Court it does clearly'' mainfest that in order to be a judgment an order must vitally affect a valuable right of a party.
Mr. Mitra placing reliance upon the Supreme Court''s decision in "Shah Babulal Khimji''s" case and. in particular, sub-paragvaph (2) of paragraph 113, has submitted that by reason of extension of liability the Court as a matter of fact does not have jurisdiction to deal with the matter any further in any event. As such, the question of keeping the suit pending and having the sword hanging on to a party does not and cannot arise. while it is true that in the event the suit is barred under any law, the question of continuation with the suit does not arise and the Court ought to pronounce the same provided it comes within the four corners of the Statute. The bar imposed by the Statute is extension of liability and there cannot possibly be any inherent lack of jurisdiction in the event the suit is being beard and is not dismissed immediately after its institution. There is fundamental difference between inherent lack of jurisdiction and want of jurisdiction. In the event of there being an inherent lack of jurisdiction, the suit would be barred. But, in the event of there being no jurisdiction, the suit cannot be said to be barred under Statutory law. But, the Court shall decide the issue as to whether the Court retains the jurisdiction or not.
Turning back to the factual aspect once again, it appears that the learned Judge while dealing with the matter has kept the suit pending. No rights had been adjudicated, no decisions have been given and findings are prima facie in nature. Considering the law as enunciated by the Supreme Court in Khimrji''s case as also by a Bench decision of this Court as above, in our view, the order of refusal to reject a plaint under Order VII Rule 11(d) of the Code cannot be termed to be an appealable order.
As such, this appeal fails and is dismissed. It is, however, put on record that we have not expressed any opinion on the merits of the matter and the issues shall be dealt with at the time of final adjudication of the suit. The suit, however, be expedited. Written Statement to be filed within 3 weeks from the date hereof; Cross Order for disco very within 2 weeks thereafter; inspection forthwith and the suit to appear in the appropriate list 6 weeks hence. It is further clarified that the appellant would be at liberty to agitate the issues as raised in the application at the time of hearing of the suit.
No order as to costs.
Sunil Kumar Guin, J.
I agree.