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PETITIONER: ASRUMATI DEBI

       Vs.

RESPONDENT: KUMAR RUPENDRA DEB RAIKOT AND OTHERS.

DATE OF JUDGMENT: 27/02/1953

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. SASTRI, M. PATANJALI (CJ) BOSE, VIVIAN BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR  198            1953 SCR 1159  CITATOR INFO :  RF         1965 SC 507  (19)  RF         1970 SC 891  (5)  R          1971 SC2337  (4)  R          1974 SC1719  (11,12,13,14)  RF         1981 SC1786  (73,99,139,152)  R          1988 SC1531  (63)

ACT: Letters Patent (Calcutta High Court), cls. 13, 15-Order  for transfer   of  suit  under  cl.  13-Whether   "   judgment"- Appealability -meaning of "judgment".

HEADNOTE:  An order for transfer of a suit, made under clause 13 of the  Letters  Patent  of  the  Calcutta  High  Court  is  not   a  "judgment"  within the meaning of clause 15 of  the  Letters  Patent  and  no  appeal lies  therefrom  under  the  Letters  Patent, as it neither affects the merits of the  controversy  between  the parties in the suit itself, nor  terminates  or  disposes of the suit on any ground.    [Meaning of the word "judgment" discussed].  Khatizan v. Sonairam (I.L.R. 47 Cal. 1104), Justices of  the  Peace for Calcutta v. Oriental Gas Co. (8 Beng.  L.R.  433),  Dayabhai  v.  Murugappa  Chettiar  (I.L.R.  13  Rang.  457),  Tuljaram v. Alagappa (I.L.R. 35 Mad. 1), Mathura Sundari  v.  Haranchandra (I.L.R. 48 Cal. 857), Chandicharan v. Tnanendra  (29 C.L.J. 225), Lea Badin v. Upendra Mohan Boy Chowdhry (39  C.W.N. 156), Kanwar Lal Singh v. Uma Devi (A.I.R. 1945  Nag.  156), Sankar Deo v. Kalyani (A.I.R. 1948 Nag. 85),  Shahzadi  Begum v. Alaknath (I.L.R. 57 All. 983), Shaw Hari v. Sonahal  Beli Ram (I.L.R. 23  1160  Lab.  491),  Sonebai v. Ahmedbhai (9 Bom.  H.C.R.  398)  and  Vaghoji v. Gamaji (I.L.R. 29 Bom. 249) referred to.  Krishna  Reddi v. Thanikachala (I.L.R. 47 Mad. 136) disapproved.

JUDGMENT:  CIVIL APPELLATE JURISDICTION: Civil Appeal No. 92 of 1952.

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Appeal  by special leave from the Judgment and  Order  dated 16th May, 1951, of the High Court of Judicature at  Calcutta (Harries C. J. and Das J.) in Appeal from Original Order No. 136 of 1949 arising out of Judgment and Order dated the 25th April,’ 1949, of the said High Court (Banerjee J.) in Extra- ordinary Suit No. 2 of 1948.    N.     C.  Chatterjee  (B.   Sen,  with  him)  for   the- appellant.    S.     P.   Sinha  (A.   K.  Dutt,  with  him)  for   the respondent.   1953.   February  27.   The  Judgment  of  the  Court  was delivered by    MUKHERJEA  J.This  appeal, which has come  before  us  on special  leave,  is  directed  against  a  judgment  of   an Appellate  Bench of the Calcutta High Court, dated the  16th May,  1951, by which the learned Judges dismissed an  appeal taken  against  an  order, made by a  single  Judge  on  the Original Side of that Court,, under clause 13 of the Letters Patent,  on the preliminary ground that the appeal  was  not competent in law. There  is  no dispute about the material facts of  the  case which  lie with-in a short compass.  On 7th August, 1947,  a suit  was filed by the respondent Kumar Rupendra Deb  Raikot in the Court of the Subordinate Judge at Jalpaiguri in  West Bengal,being  Title  Suit  No. 40 of  1947,for  recovery  of possession  of  a  large estate known  as  Baikunthapur  Raj situated in that district, on the allegation that he,  being the eldest son of late Prosanna Deb Raikot, the last  holder of  the estate, became entitled to the properties on  the  I death  of  his  father under a custom of  the  family  which excludes  all females from inheritance and follows the  rule of Iineal 1161 primogeniture  in matters of succession.  Prosanna  died  in December, 1946, and Asrumati Debi, the appellant before  us, is  admittedly his widow.  There was no son born to her  and her  only child is a daughter named Prativa.   According  to the  plaintiff respondent, his mother Renchi Debi, who is  a Lepcha by birth was another lawfully wedded wife of Prosanna and  was  married to the latter in what is known  as  the  " Gandharba  form.  Prosanna had three sons by this wife,  the plaintiff  being the eldest.  Asrumati, it is alleged,  took possession  of the bulk of the properties comprised  in  the estate  on  the death of her husband, although  she  had  no legal  right to the same and it was to evict her from  these properties  that this suit was brought.   Besides  Asrumati, the  plaintiff also impleaded three other agnatic  relations of  the deceased (who are defendants Nos. 2 to 4)  and  also his own two younger brothers as defendants to the suit. Asrumati  filed her written statement on January  19,  1948, and  the main defence put forward by her was that there  was no  legal marriage between her husband and  the  plaintiff’s mother, the latter being only one of the several  mistresses of her husband.  She denied that there was any custom in the family  under which females were excluded from  inheritance. The  defendants  2  to  4  also  filed  written  statements, challenging the legitimacy of the plaintiff and his claim to succession, and put forward their own rights as heirs  under the customary law obtaining in the family. On 30th April, 1948, the plaintiff presented an  application in  the  Original Side of the High Court of  Calcutta  under clause 13 of the Letters Patent, praying for transfer of the suit  filed in the Jalpaiguri court to the High Court to  be tried  in  its Extraordinary  Original  Civil  Jurisdiction. This application was heard by Banerjee J. sitting singly and

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by  his  order dated the 25th of April,  1949,  the  learned Judge  allowed the application, substantially on the  ground that  having regard to the atmosphere of prejudice that  was created in the locality by supporters of the defendant,  who wielded 1162 considerable influence in the district, the plaintiff  might have  a legitimate apprehension that he would not  get  fair trial in the district court. Against this decision the defendant No. 1 took an appeal  to the  Appellate Bench of the High Court of Calcutta  and  the learned  Judges (Trevor Harries C. J. and Das J.)  dismissed the  appeal on the ground that the order appealed again  was not  a  ’judgment’ within the meaning of clause  15  of  the Letters  Patent.  It is the propriety of this decision  that has been challenged before us in this appeal.   The High Court of Calcutta in holding the appeal before it to  be  incompetent  based its  decision  entirely  upon  an earlier pronouncement of a Division Bench of the same court, where it was held by Mookerjee A.C.J. sitting with  Fletcher J. that an order for transfer of a suit made under clause 13 of  the  Letters  Patent was not  a  ’judgment’  within  the meaning  of  clause  15 (1).  Reliance  was  placed  by  the learned  Judges for this view upon the pronouncement of  Sir Richard  Couch C. J. in the well-known and often cited  case of The Justice of the Peace for Calcutta v. The Oriental Gas Company  (2),  where  the  learned  Chief  Justice  said  as follows:-    "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."    The  identical  question, whether an order  for  transfer under  clause 13 of the Letters Patent is a  ’judgment’  for purposes  of appeal, was pointedly raised before the  Madras and the Rangoon High Courts, and while the Madras High Court (3)  answered the question hi the affirmative, a  definitely negative answer was given by (1)  See Khatizan v. Sonairam, I.L.R. 47 Cal. 1104 (2)  8 Ben.  L.R. 433.  (3) Vide Krishns Reddi v. Thanikacha, I.L.R 47 Mad. 136. 1163 the Rangoon High Court (1).  The Madras decision purports to be  in accordance with the view enunciated a Full  Bench  of that court in Tuljaram v. Alagappa(2) where Sir Arnold White C.  J.  sitting  with Krishna swami  Aiyar  and  Ayling  JJ. formulated  a  definition of ’judgment’ in  a  comprehensive manner  differing fro the wide interpretation put  upon  the term in the earlier case of DeSouza v. Coles (3).  "The test seems  me," thus observed the learned Chief Justice, "to  be not  what is the form of the adjudication, but what  is  its effect  on 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." This  decision, it  may  be  pointed out, has not only been  adhered  to  in Madras since then without any comment, but the Calcutta High

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Court  has in several instances manifested a marked  leaning towards it (4). On the other hand, a Full Bench(1) of the Rangoon High Court presided over by Page C.J. took ’a view altogether different from  that  of the Calcutta and the Madras  High  Courts  as regards the meaning of the word I judgment’ in clause 13  of the  Rangoon Letters Patent, which corresponds to clause  15 of  the  Letters  Patent of the  Calcutta  and  Madras  High Courts.   It was held by the Full Bench of the Rangoon  High Court  that the term ’judgment’ in the Letters Patent  means and  is  a  decree  in a suit by which the  rights  of  the -parties  in  the  suit are  determined.   In  other  words, ’judgment’  is not what is defined in section 2 (9)  of  the Civil  Procedure  Code as being the statement given  by  the judge of the grounds of a decree (1)  Dayabhai v. Muyugappa Chettiay, 13 Rang. 457 (F.B.). (2)  35 M 1 (F.B.). (3) 3 M.H.C.R. 384. (4)  Vide Muathura  Sundari v. Haran Chandra I.L.R. 43  Cal. 857;  Chandi  Charan v. Jnanendra 29 C.L.J. 225 at  229  Lea Badin v. Upendra Mohan Roy Chaudhury, 39 C.W. N. 155 1164 or  order,  but is a judoment in its  final  and  definitive sense  embodying  a  decree.   A  final  ’  judgment  is  an adjudication which conclusively determines the rights of the parties  with  regard to all matters in issue in  the  suit, whereas a preliminary or interlocutory judgment is a  decree by  which  the right to the relief claimed in  the  suit  is decided  but under which further proceedings  are  necessary before a suit in its entirety can be disposed of.  Save  and except  final  and preliminary judgments thus  defined,  all other  decisions are ’ orders’ and they do not  come  within the  description of I judgments ’ under the relevant  clause of  the Letters Patent.  No ’order’ is appealable unless  an appeal  is  expressly  provided  against  it  by  the  Civil Procedure  code  or some other Act of the  Legislature.   In this  view  an  ’  order’ for transferring  a  suit  from  a subordinate  court to the High Court could not  possibly  be regarded  as a ’judgment’, and consequently no appeal  would lie  against such an order.  This definition of  ’  judgment ’has been accepted in several cases by the Nagpur High Court (1),  and  substantially this seems to be the  view  of  the Allahabad  High Court also (2).  A Full Bench of the  Lahore High Court(,’), however, has refused to accept this view and has preferred to follow the tests enumerated by the Calcutta and the Madras High Courts.  The Bombay High Court  accepted the Calcutta view from the very beginning (4).   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 I 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 (1)  Vide  Kunwar  Lal Singh v. Uma Devi, A.I.R.  1945  Nag. 156; Shankar Deo v. Kalyani, A.I.R. 1948 Nag. 85. (2)  Vide Shahzadi Begam v. Alakhnath, 57 All. 983 (F.B.) (3)  Shaw Hari v. Sonah Mal Beli Ram, I.L.R. 23 Lah. 491, (4)  Vide Sonebai v. Ahmedbhai, 9 Bom.  H.C.R. 398, 1165 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

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character  which  we  have  before  us,  be  regarded  as  a judgment’  within  the  meaning clause  15  of  the  Letters Patent. Couch  C.J.,  as  said  already,  defined  ’judgment’  be  a decision which determines some right or liability  affecting the  merits of the controversy between the parties.   It  is true  that  according  to  the  learned  Chief  Justice   an adjudication,  in order that it might rank as a  ’judgment’, need  not decide the case on its merits, but it must be  the final  pronouncement of the court making it, the  effect  of which is to dispose of or terminate the suit or  proceeding. This  will be apparent from the following observations  made by  Couch  C.J. in the course of his judgment  in  the  case referred to above : "  It  is, however, said that this court has already  put  a wider construction upon the word I judgment’ in clause 15 by entertaining  appeals  in cases where the  plaint  has  been rejected  as insufficient, or as showing that the, claim  is barred  by limitation,, and also in cases where orders  have been  made in execution.  These however are both within  the above  definition of a judgment, and it by no means  follows that,  because we hold the order in the present case not  to be  appealable, we should be bound to hold the same  in  the cases  referred  to.   For  example,  there  is  an  obvious difference  between an order for the admission of  a  plaint and  an  order  for its rejection.   The  former  determines nothing,  but is merely first step towards putting the  case in a shape for determination.  The latter determines finally so far as the court which makes the order is concerned  that the   suit,  as  brought.  will  not  lie.   The   decision, therefore, is a judgment in the proper sense of the term ."       It  cannot be said, therefore, that according  to  Sir Richard  Couch  every judicial pronouncement on a  right  or liability between the parties is to be regarded 151 1166 as  a   ’judgment’,  for in that case  there  would  be  any number  of judgments in the course of a suit or  proceeding, each  one  of which could be challenged by way   of  appeal. The  judgment must be the final pronounce   ment which  puts an end to the proceeding so far as the court dealing with it is  concerned.  It certainly involves the  determination  of some right or liability, though it may not be necessary that there must be a decision on the merits.  This view, which is implied in the observations of Sir Richard Couch C.J. quoted above, has been really made the basis of the definition of I judgment’  by  Sir  Arnold  White C.J.  in  the  Full  Bench decision  of  the Madras High Court to which  reference  has been made (1).  According to White C.J. to find out  whether an  order is a I judgment ’ or not, we have to look  to  its effect upon the particular suit or proceeding in which it is made.  If its effect is to terminate the suit or proceeding, the  decision would be a ’judgment’ but not  otherwise.   As this  definition  covers  not only  decisions  in  suits  or actions  but  ’orders’ in other proceedings  as  well  which start with applications, it may be said that any final order passed  on  an application in the course of  a  suit,  e.g., granting  or refusing a party’s prayer for adjournment of  a suit or for examination of a witness, would also come within the definition.  This seems to be the reason why the learned Chief  Justice qualifies the general proposition  laid  down above  by stating that "an adjudication on  an  application, which is nothing more than a step towards obtaining a  final adjudication  in  the  suit, is not a  judgment  within  the meaning of the Letters Patent.  "

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As stated already, it is not our purpose in the present case to frame an exhaustive definition of the word ’judgment’  as used in clause 15 of the Letters Patent.  We have  indicated what  the essential features of a I judgment’ are  according to both the Calcutta and the Madras High Courts and all that we  need say is that, in our opinion, an order under  clause 13  of  the Letters Patent does not satisfy the tests  of  a ’judgment’ as formulated by either of these High Courts. (1)  Vide Tuljaram v. Alagappa, 35 Mad, 1, 1167 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  extraordinary original  jurisdiction.  It is true that unless the  parties to  the  suit are agreed 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 originally filed.    Mr.  Chatterjee  in the course of  his  arguments  placed considerable reliance upon the pronouncement of the Calcutta High Court in Hadjee Ismail v. Hadjee Mahomed (1), where  it was held by Court C.J. and (1)  13 Beng, L.R. 91. 1168 Pontifex  J. that an order refusing to rescind leave to  sue granted  under  clause  12  of  the  Letters  Patent  was  a ’judgment’ under clause 15 and could be challenged by way of appeal.  This decision was followed by the Bombay High Court in Vaghoji v. Camaji(1); and it is argued by Mr.  Chatterjee that there is no difference in principle between an order of that  description  and an order transferring  a  suit  under clause  13  of the Letters Patent.  The  contention  of  Mr. Chatterjee undoubtedly receives support from the judgment of the    Madras    High   Court   in    Krishna    Reddy    v. Thanikachala(2),where  precisely the same line of  reasoning was  adopted.  In our opinion, this reasoning is  not  sound and  there  is  an essential  difference  between  an  order rescinding or refusing to rescind leave to sue granted under clause 12 of the Letters Patent and one removing a suit from a subordinate court to the High Court under clause 13 of the

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Letters Patent, and this distinction would be apparent  from the observations of Sir Arnold White C.J. in the Madras Full Bench case(3) mentioned above, to which sufficient attention does  not appear to have been paid by the learned Judges  of the same court who decided the later case.  Referring to the decision  of the Bombay High Court in Vaghoji v.  Camaji(1), White C.J. observed as follows: "As regards the Bombay authorities I may refer to Vaghoji v. Camaji(1),  where  it was held that an appeal  lay  from  an order  dismissing a Judge’s summons to show cause why  leave granted under clause 12 of the Letters Patent should not  be rescinded  and  the  plaint taken off the  file.   Here  the adjudication asked for, if made, would have disposed of  the suit.   So also would an order made under an application  to revoke  a submission to arbitration.  I think such an  order is appealable."    Leave  granted  under  clause 12 of  the  Letters  Patent constitutes  the  very  foundation  of  the  suit  which  is instituted on its basis.  If such leave is rescinded. the (1) I.L.R. 29 Bom. 249.  (2) I.L.R. 47 Mad. 136. (3)  Vide Tuljaram v. Alagappa 35 Mad. 1 (F.B.). 1169 suit  automatically  comes to an end and there is  no  doubt that  such an order would be a judgment.  If, on  the  other hand,  an  order is made dismissing the Judge’s  summons  to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed out(1), that a  decision on a vital point adverse to the defendant, which goes to the very  root of the suit, becomes final and decisive,  against him so far as the court making the order is concerned.  This brings the order within the category of a ’judgment’ as laid down  in the Calcutta cases.  We need not express any  final opinion  as to the propriety or otherwise of this view.   It is  enough  for  our  purpose  to  state  that  there  is  a difference  between  ail  order refusing  to  rescind  leave granted under clause 12 of the Letters Patent and one  under clause 13 directing the removal of a suit from one court  to another,  and  there  is no good reason  to  hold  that  the principle applicable to one applies to the other also.     The result, therefore, is that, in our opinion, the view taken  by  the High Court is right and  this  appeal  should fail, and is dismissed with costs.                           Appeal dismissed. Agent for the appellant:  P.  K. Bose. Agent  for the respondent No. 1 : Sukumnar Ghose for  P.  C. Dutt.