Judgment:
S. Nainar Sundaram, C.J.
1. This Letters Patent Appeal is by the legal representative of the original respondent in Civil Revision Application No. 1014 of 1988. The Civil Revision Application is one preferred against the judgment and decree passed by the District Court at Baroda, confirming in Regular Civil Appeal No. 282 of 1982, the judgment and decree of the First Court in Rent Suit No. 1078 of 1986 instituted by the original respondent in the Civil Revision Application for eviction of the applicant in the Civil Revision Application, The respondent in this Letters Patent Appeal is the applicant in the Civil Revision Application. The original respondent in the Civil Revision Application passed away on 5-2-1991. According to Mr. Mohit S. Shah, learned Counsel for the appellant, the Civil Revision Application stood abated on 7-5-1991 and the time for setting aside the abatement also expired on 6-7-1991. The appellant, on 19-9-1992, preferred Miscellaneous Civil Application No. 1575 of 1992, praying that a writ may be sent to the District Court, Baroda and the Small Causes Court, Baroda, stating that the Civil Revision Application No. 1014 of 1988 has abated in May, 1991 and the interim stay granted therein has lapsed. However, the respondent in this Letters Patent Appeal, who is the applicant in the Civil Revision Application, on 9-10-1992, preferred Civil Application No. 5144 of 1992, to bring on record the legal representative of the deceased original respondent in the Civil Revision Application and also preferred Civil Application No. 5143 of 1992 to condone the delay thereof. The learned single Judge, by a common order, has disposed of Miscellaneous Civil Application No. 1575 of 1992 and also Civil Application Nos. 5133 of 1992 and 5144 of 1992. The learned single Judge has allowed Civil Application Nos. 5143 of 1992 and 5144 of 1992 and has rejected Miscellaneous Civil Application No. 1575 of 1992 on the ground that the Civil Revision Application has not abated. This Letters Patent Appeal is directed against the order of the learned single Judge.
2. At the time of the admission of this Letters Patent Appeal itself, a doubt was felt by the Bench as to its maintainability. However, for the purpose of deciding the question of maintainability of this Letters Patent Appeal comprehensively, after hearing the other side, the Bench consisting of two of us (S. Nainar Sundaram, C.J. & J.D. Dave, J.) admitted the Letters Patent Appeal and further directed the matter to be placed before a Larger Bench. That is how the matter has come before us, as a Pull Bench.
3. Two aspects require consideration on the question of maintainability of this Letters Patent Appeal. One is as to whether the order of the learned single Judge would amount to a 'judgment', within the meaning of Clause 15 of the Letters Patent of the High Court of Bombay, which applies to this Court. Only if the decision of the learned single Judge is a judgment, within the meaning of Clause 15 of the Letters Patent Appeal, there could be an appeal to the Bench, is a proposition not disputed before us. The second aspect, which must engage our attention on the question of maintainability of this Letters Patent Appeal, is as to whether the jurisdiction exercised by the learned single Judge and in which he made the order, subject-matter of this Letters Patent Appeal, is one which permits the agitation of the matter to a Bench of this Court by way of a Letters Patent Appeal.
4. We will take up the first aspect as to whether the decision of the learned single Judge would amount to a judgment, within the meaning of Clause 15 of the Letters Patent.
5. The Letters Patent, as such, does not define a judgment. The Letters Patent of the High Courts of Calcutta, Bombay and Madras are mutatis mutandis in almost the same terms. It would be appropriate if we first concentrate as to how the pronouncements of the Apex Court chose to deal with this question. In Asrumati Debt v. Kumar Rupendra Deb, Rajkot and Ors. : [1953]4SCR1159 , the question arose as to whether an order, transferring a Suit under Clause 13 of the Letters Patent, would be a judgment. The Apex Court noticed the wide divergence of judicial opinion in the following terms:
xxx 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 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 xxx
Taking up the question that arose directly before it, the Apex Court dealt with it in the following manner:
xxx. The question that requires determination in an application under Clause 13 of the Letters Patent is, whether a particular suit should be removed from any Court which is subject to the superintendence of the High Court and tried and determined by the latter as a Court of extra-oridinary original jurisdiction. It is true that unless the parties to the suit are sgreed on this point, there must arise a controversy between them which has to be determined by the Court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a 'Judgment'. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under Clause 13 of the Letters Patent, is, in the first place, not at all an order made by the Court in which the suit is pending In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter, to be taken only from the stage at which they were left in the Court in which the suit was original filed xxx
6. In State of Uttar Pradesh and Ors. v. Dr. Vijay Anand Maharaj : [1962]45ITR414(SC) , a learned single Judge of the High Court of Allahabad dismissed an application for review of his order under Article 226 of the Constitution of India and on appeal from his order, the Division Bench dismissed the appeal and one of the grounds for dismissal was that the order of the learned single Judge was not a 'judgment'. It was held by the Apex Court as under:
xx The decision of Mahrotra, J., dismissing the application was certainly a decision denying the right of the appellants alleged to have been conferred under the amending Act. xx
7. In Radhy Shyam v. Shyam Behari Singh : [1971]1SCR783 , the Apex Court was concerned with an order, setting aside an auction sale under Order 21, Rule 90 of the Code of Civil Procedure and the opinion on the question was expressed in the following terms:
xxx In our view an order in a proceeding under Order XXI, Rule 90 is a 'judgment' inasmuch as such a proceeding raises a controversy 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, xxx
8. In Shanti Kumar R. Canji v. The Home Insurance Co. of New York : [1975]1SCR550 , the question arose as to whether an order, allowing the amendment of a plaint, would amount to a 'judgment', within the meaning of Clause 15 of the Letters Patent. The views of the High Courts of Calcutta, Madras, Nagpur and Rangoon were adverted to and the opinion was expressed as follows:
xx The views of the High Courts at Calcutta and Madras with regard to the meaning of 'judgment' are with respect preferred to the meaning of 'judgment' given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M.B. Sirkar case : AIR1956Cal630 (supra) as to when an order on an application for amendment can become a judgment within the meaning of Clause f5 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 determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability xx
On the facts of that case, the judgment of the High Court was upheld as follows:
xxx The appellant made an application in December, 1969 for amendment of the plaint to claim pension. Those amendments were disallowed by the learned Chamber Judge. Four months thereafter the appellant sought to amend the plaint by adding certain paragraphs and those amendments were in relation to the appellant's alleged claim for pension. The appellant submitted that the second application for amendment in regard to the claim for amortised amount of damages in relation to pension was not the same as the first application. It was said on behalf of the appellant that if the learned Judge allowed the application the appellate Court should not have interfered with the discretionary order. The amendment order is not purely of discretion. Even with regard to discretionary orders the appellate Court can interfere where the order is insupportable in law or is unjust. The High Court considered the second application for amendment to be a new claim based on the new set of facts which became barred on the date of the application for amendment. In exceptional cases an amendment has been allowed where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, because the Court found that consideration of lapse of time is outweighed by the special circumstances of the case. (See Charon Das v. Amir Khan 47 Ind App 255 : AIR 1921 PC 50. The High Court rightly found that there were no special circumstances to entitle the appellant to introduce by amendments such claim xxx
9. In Shah Babulal Khimji v. Jayaben D. Kama and Anr. : [1982]1SCR187 , which seems to us to be a landmark pronouncement on the question, a learned single Judge of the High Court of Bombay dismissed an application for appointment of a Receiver as also for interim injunction. There was an appeal as against the order of the learned single Judge and the Division Bench of the High Court of Bombay dismissed the appeal as being non-maintainable on the ground that the order of the learned single Judge was not a 'judgment', within the meaning of Clause 15 of the Letters Patent. We are bound to refer to in detail this pronouncement of the Apex Court. Apart from the other pronouncements of the High Courts, there was specific reference by the Apex Court to the pronouncements of the High Courts of Calcutta, Rangoon and Madras. The pronouncement of the High Court of Calcutta referred to by the Apex Court is found in Justice of the Peace for Calcutta v. Oriental Gas Co. (1872) 8 Bengal LR 433. The following observations of Sir Couch, C.J. in the said pronouncement, on an interpretation of Clause 15 of the Letters Patent were adverted to:
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.
Then there was an analysis of the observations of Sir Couch, C.J. in the following terms:
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 Of 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.
The tests laid down by Sir Couch, C.J. were examined as follows:
Thus examining the tests laid down by Sir Richard Couch, C.J., it seems to us that the view taken by the learned Chief Justice appears to place a very strict and narrow interpretation on the word 'judgment' under which orders deciding matters of moment or valuable right of the parties without finally deciding the suit may not amount to a judgment and hence, not appealable. In giving this interpretation the learned Chief Justice was guided by two considerations:(1) that a liberal interpretation may allow vexed litigants to carry any discretionary order of the trial Court in appeal, and (2) that it would confer mate extensive right to appeal against the Judge sitting on the original side than the right of appeal given to a Trial Judge sitting in the mofussil. We are doubtless impressed with the argument of the Chief Justice and fully appreciate the force of the reasons given by him but we feel that despite those considerations the law must be interpreted as it stands and 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. Although it is true that this decision is practically the locus classicus so far as the Calcutta 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 themselves that the High Court should give up its fondness to stick to the principles laid down by the learned Chief Justice xx
Referring to the pronouncement of the Full Bench of the High Court of Rangoon in Dayabhai Jiwandas v. A.M.M. Murugappa Chettiar AIR 1935 Rangoon 267, this is what was observed:
xx The other leading case which puts even a narrower interpretation and, in our opinion, a clearly wrong one, on the word 'judgment' is the Full Bench decision of the Rangoon High Court in In Ke Dayabhai Jiwardas 's das's, (cue (A) R 1935 Rangoon 267) (supra) where the following observations were made:
I am of opinion that in the Letters Patent of the High Courts the word 'judgment' means and is a decree in a suit by which the rights of the parties at issue in the suit are determined.With due respect to the learned Chief Justice and the Judges who agreed with him, we are unable to accept the interpretation of the word 'judgment' given by the Chief Justice which runs counter to the very spirit and object of the word judgment' appearing in Clause 15 of the Letters Patent. The learned Chief Justice seems to have fallen into the error of equating the word 'judgment' with 'decree' as used in the Code of Civil Procedure when, as pointed out above, the words 'judgment' and 'decree' used in the Code cannot form a safe basis to determine the definition of the word 'judgment' in the Letters Patent particularly when the Letters Patent has deliberately dropped the word 'decree' from 'judgment'. We are therefore unable to hold that the view taken by the Chief Justice, Sir Page, is correct and accordingly overrule the same.
Then the Apex Court referred to the pronouncement of the High Court of Madras in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar (1912) ILR 35 Madras 1 and analysed the observations of Sir Arnold White, C.J., in the said pronouncement as follows:
The next leading case which lays down the test of a Judgment' and which seems to have found favour with most of the High Courts in India is the test laid down by Sir Arnold White, C.J. Jn Tuljaram Row's case 1912 ILR 35 Mad. 1 (supra) where the learned Chief Justice pointedly spelt out various tests and observed thus:
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 proceedfhg is pending is concerned, or if its effect, if its 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 towaids 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 instiuted 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 lias laid down the following tests in order to assess the import and definition of the word 'Judgment' as used in Clause 15 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 render the judgment effective can also be termed as judgment within the meaning of the Letters Patent.'
So far as this test is concerned, the learned Chief Justice had in mind orders passed by the trial Judge granting or refusing ad interim injunction or appointing or refusing to appoint a receiver.
(5) An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings.
(6) An adjudication based on a refusal to exercise discretion the effect of which is to dispose of the suit, so far as that particular adjudication is concerned, would certainly amount to a judgment within the meaning of the Latters Patent.
There was also advertence to the view of Krishnaswamy Ayyar, J., as follows:
xx Similarly, Krishnaswami Ayyar, J., who agreed with the Chief Justice in the above case, pointed out that even an interlocutory judgment which determines some preliminary or subordinate point or plea or settles some step without adjudicating the ultimate right of the parties may amount to a judgment. With due respect we think that if the observations of Krishnaswamy Ayyar. J. are carried to its logical limit every interlocutory order would have to be held to be appealable.
The pronouncements of the High Courts of Calcutta and Madras were then weighed in the following terms:
xx So far as the tests laid down by White, C.J., and as analysed by ug, are concerned, we are inclined to agree generally with these tests though we feel that some of the tests laid down are far too wide and may not be quite correct. While the view taken by Sir Richard Couch, C.J. in Justice of the Peace for Calcutta 0872-8 Bengal LR 433) (supra) is much too strict, the one taken by Sir White, C J. is much too wide. The correct test seems to lie somewhere in between the tests laid down by the aforesaid jurists.
10. Thereafter, the Apex Court referred to its earlier pronouncements to which we have adverted to as above, and then proceeded to recapitulate three kinds of judgments as final judgment, preliminary judgment and intermediary or interlocutory judgment. Before that, the Apex Court also noted that Clause 15 of the Letters Patent makes no attempt to define what a judgment is, and held that as Letters Patent is a special law, which carves out its own sphere, it would not be possible to project the definition of the word judgment', appearing in the Code of Civil Procedure, into the Letters Patent. However, the Apex Court opined that the intention of the givers of the Letters Patent is that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment', used in the Code of Civil Procedure. The relevant observations are found in the following passage:
xx 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. Code of Civil Procedure 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 term '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 xx
The Apex Court gave various instances of interlocutory orders, but hastened to add that the instances are illustrative and not exhaustive. In our view, the following passages ultimately sum up as to how guidelines are to be taken from the pronouncements discussed:
xx We have already referred to the various tests laid down by the Calcutta, Rangoon and Madras High Courts. So far as the Rangoon High Court is eoncer-ned we have already pointed out that the strict test that an order passed by the trial Judge would be a judgment only if it amounts to a decree under the Code of Civil Procedure, is legally erroneous and opposed to the very tenor and spirit of the language of the 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 1912 ILR 35 Mad. 1 (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 ot 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 coarse of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate Court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The Courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex fade legally erroneous or causes grave and substantial injustice,
(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.
(3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.
Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a judgment within the meaning of the Letters Patent xx
The Apex Court also gave as many as fifteen illustrations of interlocutory orders, which may be treated as 'judgment'. We are not recapitulating them, for the simple reason, the order of the learned single Judge, in the instant case, does not fall within any of them to become a judgment.
11. Ultimately, as to how the assessment of the question is left to the Court, without curtailment by any strait-jacket formula, has been indicated in the following passage:
xx 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 strait-jacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term 'judgment' would have now been settled and a few cases which may have been left out, would undoubtedly be decided by the Court concerned in the light of the tests, observations and principles enunciated by us. xx
12. The Apex Court held the order, with which it was concerned, as a judgment, by this passage:
xx In the instant case, as the order of the trial Judge was one refusing appointment of a receiver and grant of an ad interim injunction, it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment, Order 43, Rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would, therefore, be a judgment within the meaning of Clause 15 of the Letters Patent.
13. Thus, the Apex Court enunciated the tests, observations and principles, in the light of what the Court is expected to decide the cases coming before it. A word of caution has also been struck by stating that it is not possible to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the tests in a strait-jacket. The Court has been advised to follow neither a broader nor a narrower test; but to lay the test in between the two. The pragmatism, the logic and the experience of the Court, are not directed to be scuttled down in assessing the question arising before it.
14. Situations, similar to the one presenting to us, have come up or considerations before other High Courts, and though their pronouncements are anterior to the pronouncement of the Apex Court in Shah Babulal Khimji v. Jayaben D. Kama and Anr. : [1982]1SCR187 , the tests applied to give the rulings, we find, do not transgress the guidelines set down by the Apex Court. In Maria FJaviana AJmeida and Ors. v. Ramchandra Santuram Asavie and Ors. AIR 1938 Bombay 408, a Bench of the High Court of Bombay was asked to deal with a preliminary point that an order setting aside abatement is not a judgment. The Bench only adopted the cardinal test, neither narrow nor wider, and which has not been disapproved by the Apex Court, as found in Justice of the Peace for Calcutta v. Oriental Gas Co. (1872) 8 Bengal Law Reports 433 that judgment means a decision, which affects the merits of the question between the parties by determining some right or liability. The Bench held:
xx An order setting aside an abatement does not affect the merits of the dispute, between the parties, though it certainly determines a right, because in the absence of such order the plaintiff is debarred from suing the defendant for the amount claimed. The order is really one in procedure. The plaintiffs originally had a cause of action which through no fault of their own came to an end by the death Of their opponent, and the effect of setting aside the abatement is merely to excuse delay in restoring the suit to an actionable condition xx
15. In Smt. Chando Devi v. Municipal Committee, Delhi , the same question as to whether an order, setting aside abatement would amount to a judgment, came up for consideration before a Bench of the High Court of Punjab, and the ruling in Maria Flaviana Almeida and Ors. v. Ramchandra Santuram Asavie and Ors. AIR 1938 Bombay 408 was followed to answer the question in the negative.
16. In Nurul Hoda and Ors. v. Amir Hasan and Anr. : AIR1972Cal449 , the question as to whether an order setting aside abatement would be a judgment came up for consideration before a Full Bench of the High Court of Calcutta. Sabyasachi Mukharji, J., as he then was, spoke for the Full Bench. There was a reference to the pronouncements of the Apex Court, and it was said:
xxx It is not necessary for us to lay down any exhaustive definition of the expression 'judgment'. But it appears from the aforesaid decisions and the subsequent decisions to be referred hereafter that the following tests should be applied in considering whether a particular order amounts to a 'judgment' or not, namely, (i) whether me order in question puts an end to the proceeding so far as the Court dealing with it is concerned, in which the order was sought and made, (ii) the order must involve determination of some right or liability affecting the merits, (iii) an adjudication or a decision, which is not anything more than a step towards obtaining the final adjudication on the merits of the dispute in the proceeding is not judgment within the meaning of Letters Patent, (iv) where the decision involves adjudication on the question of limitation or jurisdiction of the Court, in certain cases, such decisions would amount to judgment xxx.
We find that the tests thought about and laid down do not violate the guidelines delineated by the Apex Court in Shah Babulal Khimji v. Jayaben D. Kama and Anr. : [1982]1SCR187 . As to the character of the order setting aside abatement, this is what was observed:
xx The question, therefore, is, does not the order of the learned trial Judge in this case involve determination of some right or liability though such determination in aynot be a desision on the merits. In this case, the merits of the controversy in the suit remain unaffected by the order in question. The order in question, however, affects the right of the plaintiff to proceed with the suit. The controversy on the suit and the points in dispute therein remain unaffected by the order in question. No right or liability of the party in respect of the points in dispute in the suit are touched by the order setting aside the abatement xx
17. We find that the above pronouncements of the High Courts of Bombay, Punjab and Calcutta do adequately help us to decide the question that has arisen here for our consideration. In the present case, the learned single Judge negatived the theory advanced before him that the Civil Revision Application abated. In other words, the decision is to the effect that the Civil Revision Application survives for consideration on merits. Consequently, the legal representative of the deceased original respondent has been allowed to come on record to enable adjudication of the Civil Revision Application on merits. There is no need to go into the reasoning expressed by the learned single Judge, as desired by Mr. Mohit J. Shah, learned Counsel for the appellant, and it is enough, if we note the effect or the. substance of the order to find out as to whether it would amount to a 'judgment' for the purpose of Clause 15 of the Letters Patent. Such an order has not affected the merits of the dispute between the parties. The order has not concluded the further progress or prosecution of the Civil Revision Application, and on the other hand it allows the Civil Revision Application to be progressed for adjudication of the rights and liabilities of the parties therein. It could only have the character of a procedural step. Nothing got decided and there was no determination of any right or liability of the parties by such an order and it is only a step-in-aid to make further progress in the Civil Revision Application towards such determination.
18. However, Mr. Mohit S. Shah, learned Counsel for the appellant, wants us to take note of the following observations found in a pronouncement of a Bench of this Court in Indulal Kanaiyalal Yagnik v. Prasannadas D. PatV/ari and Ors. : AIR1972Guj92 :
xxx Where an order is made refusing to set aside abatement of proceeding or to excuse delay in filing an appeal or to set aside an ex-pane decree, it is well-settled by decisions of the I ombay High Court, that such an order would be a 'judgment' because it negatives the right of the party to proceed further for adjudication of 'his rights on merils. But where an order is made setting aside abatement of a proceeding or excusing delay in filing an appeal or setting aside an ex-pane decree, the view taken by the Bombay High Court in decided cases is that it would not be a 'judgment' because it does not affect the merits of the question between the parties by determining some right or liability in the main proceeding but is merely a procedural step restoring the main proceeding to an actionable condition in which the substantive rights and liabilities, for adjudication of which the main proceeding is brought, can be deteimined. See Almeida v. Ramchandra Asavie 40 Bom. LR 658 : Vaijayantappa Shirseppa v. Anasuya 42 Born LR 377 : and Elphinstone Etc. Mills v. Scndhi & Sons 63 Bom. LR 947. This view taken by the Bombay High Court results in an anomaly that though an application of the nature abovemen-tioned is an independent proceeding involving deteimination of some right or liability not in issue in the main proceeding, an order terminating the application one way would amount to a 'judgment' while an order terminating the application the other way would not be a 'judgment'. We do not see any valid reason for making this distinction. Where application is made for setting aside an abatement, it is an independent proceeding in which the question arises whether the party applying is entitled to have the abatement set aside. This question would not be a question in controversy between the parties on merits in the main proceeding and the decision of this question one Way or the other would not, therefore, be liable to be regarded as a 'judgment' on the ground that it affects the merits of any question between the parties determining some right or liability in the main proceeding. Nor would the decision of this question be liable to be regarded as a 'judgment' on the ground that it has the effect of terminating the main proceeding because even if it is held that the party applying is not entitled to have the abatement set aside, it would not have the effect of putting an end to the main proceeding since the main proceeding has already come to an end by reason of abatement prior to the making of the application for setting aside the abatement a decision refusing to revive a dead proceeding cannot be said to have the effect of annihilating the proceeding or putting an end to it. The decision refusing to set aside the abatement could, therefore, be regarded as a judgment only on the hypothesis that it determines some right or liability in the application for setting aside the abatement and if that be so, the decision setting aside the abatement must also likewise be regarded as a judgment. The same reasoning would also, apply in case of an application for setting aside an ex-parte ('ecree or an application for excusing delay in filing an appeal. It would, therefore, seem that the view taken by the Bombay High Court making a distinction between kinds of orders in such applications, is not justifiable on principle, and some day, when a proper case comes before this Court, it may have to be reconsidered. But so far as the present case is concerned, no such question arises for consideration because issue No. 2 as to whether the petition was not properly constituted and was liable to be dismissed on account of non-joinder of Vasudev Tripathi was an issue in the petition and it did not form the subject-matter of an independent proceeding in which some right or liability not in issue in the petition was sought to be agitated xx
Learned Counsel for the appellant wants us to draw inspiration from the above observations of the Bench to say that an order, setting aside abatement, or an order, holding that there is no abatement and permitting the legal representative to come on record to prosecute the main lis, as in the present case, is a judgment. We must point out that the question never arose for consideration at all before the Bench. The observations are only obiter dicta. The tests to be remembered having been delineated in the pronouncements of the Apex Court, they have, legitimately, formed a guidance for us to decide the question and we are bound to decide it only in the light of those tests.
19. However, Mr. Mohit S. Shah, learned Counsel for the appellant, is anxious to draw a parity between the reasons expressed by the Bench in the above observations; - though obiter dicta; - and the reasons expressed by the Apex Court in Shah Babulal Khimji v. Jayaben D. Kama and Anr. : [1982]1SCR187 , while classifying and giving illustrations of interlocutory judgments and discussing the question with regard to an ex-parte decree. The discussion of the Apex Court on the question runs as follows:
xxx Similarly, suppose the trial Judge passes an order setting aside an ex-parte decree against the defendant, which is not appealable under any of the clauses of Order 43, Rule 1 though an order rejecting an application to set aside the decree passed ex-parte falls within Order 43, Rule 1, Clause (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of Letters Patent. The fact, however, remains that the order setting aside the ex-pane decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore the order passed by the trial Judge setting aside the ex-parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is, therefore, appealable to a larger Bench xx
Learned Counsel for the appellant, on the basis of the above discussion, would submit that when the Apex Court is prepared to lean to call an order, setting aside an ex-parte order, 'an interlocutory judgment', amenable for appeal under Clause 15 of the Letters Patent, there is no reason why the same could not be the position in respect of an order, setting aside abatement, and/or permitting legal representative to prosecute the main Us. Learned Counsel for the appellant would submit that the observations of the Bench in Indulal Kanaiyalal Yagnik v. Prasannadas D. Patwari and Anr. : AIR1972Guj92 , extracted above, reflect only the same line of reasoning which weighed with the Apex Court. We must straightaway point out that the case of setting aside an ex-parte decree is not at all comparable with the case of setting aside abatement and/ or permitting legal representative to prosecute the main lis. There is a lot of difference and a portent difference between the two. An ex-parte decree is as good a decree as on cotest. By the ex-parte decree, the rights and liabilities of parties in the Us are determined. When the ex-parte decree is set aside, securing of the settlement or determination of me issues in the lis by the plaintiff is dissolved, demolished and snatched away. It is true that the Apex Court took note of the fact that as against refusal to set aside an ex-parte decree, the Code of Civil Procedure permits an appeal. It does not mean and certainly the Apex Court has not meant that whenever the Code of Civil Procedure permits an appeal, same should be the position under the Letters Patent. The observations of me Apex Court cannot be culled out of context to support the advancement of such an omnibus and universal theory. The Apex Court, succinctly, recapitulated the implications of getting aside an ex-parte decree by pointing out:
xxx The fact, however, remains that the order setting aside the ex-parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the ex-parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is, therefore, appealable to a larger Bench xxx
Each order or decision will have to be tested by the Court to find out as to whether it would be a 'judgment', within Clause 15 of the Letters Patent. As the Apex Court itself has struck the note of caution, the tests could not be capsuled into an iron jacket. As noted by us earlier, by setting aside abatement and/or allowing legal representatives to come on record, there is no determination of the rights and liabilities of the parties in the lis. No such determination, if any, already done, is being undone here, as in the case of setting aside an ex-parte decree. No fruits of decree already obtained are being deprived here. The order is substantively procedural and enables the parties to proceed towards such determination. The negative thinking that if abatement is not set aside, the plaintiff would not be enabled towards determination of such rights and liabilities cannot be availed of to say that only because the abatement is set aside, the plaintiff is allowed to make progress towards such determination, and hence, that decision must be classified as a 'judgment', under Clause 15 of the Letters Patent' This line of reasoning is totally untenable and, obviously, cannot appeal to us, because all said, the decision is only procedural and not adjudicatory. Here, we must make it clear that we have no occasion to dwell upon and give our opinion as to whether an order, declining to set aside abatement and/or declining permission to legal representative to prosecute the main lis, would be a 'judgment', within Clause 15 of the Letters Patent. We can only note that the Code of Civil Procedure permits an appeal against such an order and further, as taken note of by the Bench in Indulal Kanaiyalal Yagnik v. Prasannadas D. Patwari and Ors. : AIR1972Guj92 , there seems to be pronouncements of this Court, taking the view that an order, refusing to set aside abatement, could be a 'judgment', because it negatives the right of the party to proceed further in adjudication of rights, on merits. We can only state this much and leave the matter at that.
20. Now, we will take up the second aspect as to whether the jurisdiction exercised by the learned single Judge and in which he made the order, subject-matter of this Letters Patent Appeal, is one, which permits an appeal to a Division Bench under Clause 15 of the Letters Patent. Under Clause 15 of the Letters Patent, the following categories of decisions are being excluded from being amenable to an appeal to a Division Bench of the High Court:
(i) A judgment passed in exercise of appellate jurisdiction in respect of decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court;
(ii) An order made in exercise of revisional jurisdiction; and
(iii) A sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act or in exercise of Criminal jurisdiction of one Judge of the High Court or one Judge of the Division Court pursuant to Section 108 of the Government of India Act.
An exception has been set down as follows:
xxx.... notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court, or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act made on or after the first day of February 1929, in exercise of appellate jurisdictioi. in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal;....
(Emphasis supplied)
Under the Letters Patent, various jurisdictions are conferred on the High Court. Broadly classified, they are Ordinary Original Civil Jurisdiction, Extra-ordinary Original Civil Jurisdiction, Appellate Jurisdiction from subordinate Courts, Jurisdiction as to Infants and Lunatics, Insolvency Jurisdiction, Criminal Jurisdiction, Testamentary Jurisdiction, and Matrimonial Jurisdiction. So far as intra-Court appeals are concerned, we cannot lose sight of the exclusions spoken to in Clause 15 of the Letters Patent. An order made in exercise of Revisional Jurisdiction is specifically excluded under Clause 15 of the Letters Patent. There is no escape from it. Revival, putting an end to, on technical or other preliminary grounds, deciding finally, shutting out even at the inception, of proceedings, are all in and relatable only to the specified jurisdictions and powers conferred on the Court and invoked. There could not be a mixing up of jurisdictions or powers conferred on the Court and invoked for intiation of proceedings. If and when a particular jurisdiction or power is invoked for initiation of proceedings, it is not possible to dissociate the related steps or proceedings from the main proceedings initiated under that jurisdiction and power. The nature of the main proceedings will decide the nature of all the proceedings relatable to it. It will not be proper to import a concept of an independent proceeding; nor is it possible to give the proceeding relatable to the main proceeding the character of an original proceeding. The concept of an original proceeding in that context, in our view, would be a misnomer. A jurisdiction or a power invoked must govern all the proceedings relatable to the main proceeding. If the proceeding is not relatable to the main proceeding, any order passed in such proceeding could not have any effect on the main proceeding. But the intendment of the related proceeding is only to have effect on the main proceeding and hence, the nexus could not be snapped or lost by calling the related proceeding 'an independent proceeding', or 'an original proceeding One kind of jurisdiction or power invoked will continue to have that character alone despite innumerable proceedings cropping up or branching out of the main proceeding thereunder. The nature of the jurisdiction and power invoked, for the main proceeding will decide the nature of the jurisdiction and power invoked in respect of all the proceedings relatable to it.
21. Mr. Mohit S. Shah, learned Counsel for the appellant, would on the second aspect, place reliance on the pronouncement of a Bench of this Court in Shantilal Chandrashanker and Anr. v. Bai Basi, widow of Bhura Anop. : AIR1976Guj1 , That was the case of a Second Appeal getting dismissed, on merits, even at the admission stage when the Counsel for the appellant was absent and there was a refusal to restore the Second Appeal and re-admit it. A Bench of this Court held that it was not open for the appellate Court to dismiss an appeal, on merits, at admission stage, if, when the matter was called on for hearing, the appellant or his Advocate was absent and the only order the appellate Court could pass in such circumstances was to dismiss the appeal for default, and even if the appellate Court purports to dismiss the appeal on merits, it would be an order of dismissal of the appeal for default, Learned Amiens Curiae, who assisted the Bench, seemed to have pointed out that the Letters Patent Appeal was not maintainable. However, the Bench opined that the order finally disposed of the rights of the parties and was really an order on an original proceeding, viz; on an application for restoration and hence, the Letters Patent Appeal would lie and be maintainable. Here, we are duty bound to point out that in the Report, proper punctuation is missing and the reading of the passage without punctuation seems to convey as if the learned Amicus Curiae suggested the proposition, which formed the opinion of the Bench. Supplementing the punctuation, the relevant passage in the pronouncement conveys only the opinion of the Bench, as we have recapitulated above. In view of our preceding discussion, we are not in a position to subscribe our support to the above opinion of the Bench.
21.1 Mr. Mohit S. Shah, learned Counsel for the appellant, would also place reliance on a pronouncement of a subsequent Bench of this Court in Chamar Govindbhai Hirabhai v. Harijan Tababhai Alabhai XVIII (1977) GLR 202. to say that the learned single Judge must have exercised only original jurisdiction when he allowed the applications of the respondent in this Letters Patent Appeal, who was the applicant in the Civil Revision Application. The Bench, in the above pronouncement, was concerned with the order of the learned single Judge, refusing to set aside the abatement of a Second Appeal. The Bench held that the order would be a 'judgment', within the meaning of Clause 15 of the Letters Patent. However, the Bench referred to the pronouncement of the earlier Bench in Shantllal Chandrashanker and Anr. v. Bai Basi, Widow of Bhura Anop : AIR1976Guj1 , to say that when the Second Appeal abated, the application taken to set aside abatement must be held to be an original proceeding' and hence, an appeal against an order, refusing to set aside abatement, is maintainable under Clause 15 of the Letters Patent without any certificate of the learned single Judge. While, in this case, we have no opinion to offer as to whether an order, refusing to set aside the abatement, would be a 'judgment' or not, as we have already made it clear, certainly, we are not subscribing our support to the theory that an application to set aside abatement of a Second Appeal is 'an original proceeding'. We have already pointed out that the concept of an original proceeding would be a misnomer in the said context.
22. In the light of our above discussion, we hold:
(i) firstly that the order of the learned single Judge, in the present case, is not a 'judgment', within the meaning of Clause 15 of the Letters Patent;
And
(ii) secondly, the jurisdiction and the power, under which the learned single Judge made the order, is revisional jurisdiction and is revisional power, and they are specifically excluded from the purview of Clause 15 of the Letters Patent and hence, no intra-Court appeal is permissible. Accordingly, we dismiss this Letters Patent Appeal as not maintainable. We make no order as to costs.
23. On the verdict being pronounced, as above, Mr. Mohit S. Shah, learned Counsel for the appellant, prays leave of us to appeal to the Supreme Court. What guided us are the categoric statements of law expressed by the Supreme Court in the pronouncements, which we have adverted to, and we do not think that the matter involves any substantial question of law of general importance, requiring determination at the hands of the Supreme Court. Accordingly, the leave prayed for is refused.