SHAH BABULAL KHIMJI v. JAYABEN D. KANIA AND ANR (2)

Citation: [1982] 1 S.C.R. 187

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A. VARADARAJAN, AMARENDRA NATH SEN

Judgment text

187 SHAH BABULAL fKHIMJI v. JAYABEN D. KANIA AND ANR. August JO, 1981 • - [S. MURTAZA FAZAL ALI, A. VARADARAJAN AND AMARENDRA NATH SEN, JJ] Code ofCivil Procedure, 1908-Section 104 Order 43 Rule I-Scope of- • Letters Patent-Clause 15-Right of Appeal under chruse 15--Jfaffected by sec· lion 104,'_0rder 43 Rule 1. In a suit for specific performance of an agreement to sell filed on the original "--. side of the Bombay High Court the plaintiff (appellant) prayed for certain interim reliefs. A single Judge of the High Court dismissed the application. Division Bench of the High Court, on appeal by the plaintiff, held that the appeal was not maintainable on the ground that the impugned order of the single Judge was not a 'juGgment' within the meaning of clause 15 of the Letters Patent of the High Court.

In appeal to this Court it was contended on be:half of the appellant that since the trial Judge is governed by the procedure prescribed by the Code of Civil Procedure, by virtue of the provisions of section 104 read with Order 43 Rule (I) the impugned order is appealable to a larger Bench; (2) assuming that the Letters Patent was a special law, section 104 re~ad with Order 43 is in no way inconsistent with clause 15 of the Letters Patent; (3) even if section 104 read with Order 43 Rule l does not apply an order refusing to appoint a receiver or to grant injunction has the attributes of finality and, therefore, amounts to '"judgment' within the meaning of Letters Patent. - Allowing the appeal HELD: (per Fazal Ali and A. Varadarajan, JJ. ) (Amarendra Nath Sen, J. concurring.

) Since the Order of the trial Judge was one refusing appointment of receiver and grant of ad-interim injunction, it is a 'judgment' within the meaning of the Letters Patent both because order '3 rule 1 applies to internal appeals in the High Court, and such an order even on merits contains the quality of finality and would be a judgment within the meaning of clause 15 of Letters Patent. Hence an appeal is maintainable to the Division Bench. The Division Bench was in error in dismissing the appeal without deciding it on merits. (259 F-G] There is no inconsistency between section 104 read with Order 43 Rule l, C. P. C. and appeals under Letters Patent. There is nothing to show that Letters Patent in any way excludes or overrides the application of section 104 read with Order 43 Rule 1 or that these provisions do not apply to internal appeals within the High Court.

[237 E-F] Code of Civil Procedure 1877, by sections 588 and 589, did not make any distinction between appeals to the High Court from the District Court and internal appeals to the High Court under Letters Patent. Notwithstanding the clear enunciation of law by the Privy Council that section 588 did not affect nor was it inconsistent with the provisions of Letters Patent and that, therefore, -• orders of a trial Judge which falt beyond section 588 could be appealable to a larger bench under the Letters Patent if its orders amounted to a 'judgment' within the meaning of clause 15 of the Letters Patent, there was a serious controversy among the High Courts on this question. Section 104 of the C. P. C. , 1908 made it clear that appeals against orders mentioned in Order 43 Rule l • were not in any way inconsistent with the Letters Patent but merely provide additional remedy by allowing appeals against miscellaneous orders passed by the trial Judge to a larger bench.

(205 E-G] In dealing with a suit the trial Judge has to follow the procedure prescribed by the Code. It is indisputable that any final judgment passed by the trial Judge amounts to a decree and under the provisions of the Letters Patent an appeal lies to a larger bench. Letters Patent itself does not define the term 'judgment' and has advisedly not used the word 'decree' in respect of a judgment given by the trial Judge. [205 B·D] Section 5 of the Code empowers the State Govrnment to apply the provisions of the Code where any enactment is silent as to its applicability. Section 5 makes clear that, excepting the Revenue Courts, all other Civil Courts would normally be governed by the provisions of th~ Coje in the matter of procedure.

[206H1207Al Section 4 of the Code which provides that in the absence of any specific provision to the contrary the provisions of the Code do not limit or affect any special or local law, is not applicable in the instant case because even if the Letters Patent is deemed to be a special law within the meaning of this section the provisions of section 104 do not seek to limit or affect the provisions of the Letters Patent. (207 B-C] By force of section 104 all appeals, as indicated in the various clauses of Order 43 Rule 1, would lie to the appellate court. In short a combined reading of the various provisions of the Code leads to the conclusion that section 104 read with Order 43 Rule 1 clearly applies to proceedings before a trial Judge of the High Court, (207 H; 209 Bl In the instant case, therefore, section 104 read with Order 43 Rule 1 does not in any way abridge or interfere with or curb the powers conferred on the trial Judge by clause 15 of Letters Patent.

They only give an additional remedy by way of appeal from the orders of the trial Judge to a larger bench. That being so there is no force in the respondent's argument that these provisions do not apply to imernal appeals in the High Court. [209 D-E] BABULAL V. JAYABEN 189 Hurrish Chunder Chowdry v. Kali Sundari Debia, 10 I. A. 4, Mt. Sabitri Thakurain v. Savi & Anr. A. I. R. 1921 P. C. 80, Union of India v. Mohindra Supply Co. , [1962] 3 S. C. R. 497 and Shankarlal Aggarwal & Ors. v. Shankar/al Poddar & Ors. [1964] 1 S. C. R. 71, referred to. A number of enactments, as for example, :;ection 202 of the Companies Act, 1956 and section 39 of the Arbitration Act widen, rather than limit, the original jurisdiction of the High Court by conferring additional or supplementary remedy by way of appeal to a Division Bench from the judgment of a single Judge.

On a parity of reasoning, therefore, section 104 read with Order 43 Rule 1 expressly authorises and creates a forum for appeal against orders falling under the various clauses of Order 43 Rule 1 to a larger bench of the High Court without disturbing, interfcrring with or over-riding the Letters Patent jurisdiction. [211 B-C] Dayabhai Jiwandas & Ors. v. A. M. M. Afurugappa Chettiar, I. L. R. 13 Rangoon 457, Sonbai v. Ahmedbhai Habibhai [11172] 9 Born. HC Reports. 398, Rajagopal & Ors. (in Re. LPA 8 of 1886) ! LR 9 Mad. 447, Ru/du Singh v. Sanwal Singh [1922] ! LR 3 Lahore 188, Lea Badin v. Upendra Mohan Roy Chaudhary & Ors. [1934-35] 39 CWN 155, Mathura Sundari Dassi v. Haran Chandra Shaha & Ors. A. LR. 1916 Cal. 361 Abdul Samad & Ors. v. The State of J & K. A. I. R. 1969 J&K 52, and Kumar Ga11gadhar Bag/av. Karui Chunder Mukerjee & Anr. , 40 CWN 1264, approved. Ram Sarup v. Kaniz Ummehani, ILR 1937 Al. I. 386 over-ruled.

Assuming that Order 43 Rule 1 does not apply to Letters Patent appeals the principles governing these provisions would apply by process of analogy. The provisions of Order 43 Rule 1 possess the traits, trappings and qualities and characteristics of a tinal order. Although the word 'judgment' has not been defined in the Letters Patent but whatever test 1nay be applied the order pass~d - by the trial Judge appealed against must have the traits and trappings of finality. - The appealable orders indicated in the various clauses of Order 43 Rule 1 are matters of moment deciding valuable rights of the parties and are in the nature of final orders so as to fall within the definition of 'judgment'. [2370; 225 E-F] Radhey Shyam v. Shyam Behari Singh [1971] l S. C. R. 7g3 referred to. • Pandy Walad Dagadu Mahar & Anr. v. Jamnadas Chotuma/ Marwadi, A. I. R. 1923 Born. 218; Vaman Ravi Kulkarni v. Nagesh Vishnu Joshi & Ors, -1- A. I. R. 1940 Born. 216; Vishnu Pratap & Ors. v. Smt.

Revati Devi & Ors. A. 1. R. 1953 All. 647; Madhukar Trimbak/al v. Shri Sari Godawari Uparani Maharaj of Sakori & Ors. A. LR. 1940 Nagpur 39; Ratan/al Jankidas Agarwal v. Gajadhar & Ors. ; A l. R. 1949 Nagpur 188; Beads Factory&: Anr. v. Shri Dhar & Ors. A. LR. 1960 All. 692; J. K. Chemicals Ltd. v. Kreba &. Co. ; A. LR. 1967 Born. 56, overruled. Having regard to the nature of the orders contemplated in the various clauses of Order 43" Rule 1 \\'·hich purport to decide valuable rights of the parties in the ancilliary proceedings even though the suit is kept alive these orders possess the attributes or characteristics of finality so as to be judgments within the meaning of clause 15 of the Letters Patent. They are therefore, appealable to a larger bench. The concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position.

[237H-238A-BJ The question to be decided in this case which is a vexed and controversial one is as to what is the real concept and purport of the word 'judgment' used in the Letters Patent. The meaning of the word 'judgment' has been the subject matter of conflicting decisions of the various High Courts raging for almost a century and over which despite the length of time no unanimity had been reached and it is high time that this controversy should be settled once and for all as far as possible. [238 E-F] Out of the numerous authorities cited three leading judgments have spelt out certain tests for determining as to when an order passed by a trial Judge can be said to be a 'judgment' within the meaning of clause 15 of the Letters Patent and we are inclined to agree generally with the tests laid down in these cases though some of the tests laid down are far too wide and may not be correct. [238 G·H] While the view taken in the Justices ofthe Peace for Calcutta v.

The Orienta/ Gas Company (VIII Bengal L. R. 433) is much too strict, the one taken in T. V. Tu/jaram Row v. M. K. R. V. A/agappa Chefliar (ILR 35 Madras 1) is much too wide. The correct test seems to lie somewhere in between the tests laid down in these cases. Similarly the full Bench decision in Manohar Damodar Bhoot v. Baliram Ganpat Bhoot (AIR 1952 Nagp~r 357) pithily described the essential requisites and the exact meaning of the word 'judgment' as used in the Letters Patent. The pointed observations made in this case try to synthesize the conflicting views taken by the Calcutta and Madras High Courts. They represent the true scope and import of the word 'judgment' as used in the Letters Patent. [The Court reviewed the entire case law on the subject laying down various tests to determine \. vhat a judgment is. ] .

- The test for determining as to when an order passed by a trial Judge can be said to be a 'judgment' within the meaning of the Letters Patent are : (I) Where an order, which is the foundation of the jurisdiction of the Court or one which goes to the root of the action, is passed against a particular party, it amounts to a judgment. [248 B-C] • Asrumati Debi v. Kumar Rupendra Deb Raikot [1953] SCR 1159 (2) An order dismissing an application for review would be appealable under the Letters Patent being a judgment, though it is not made appealable under Order 43 rule I. [249 BJ State of Uttar Pradesh v. Dr. Vijay Anand Maharaj [1"963] 1 SCR 1. (J) The Companies Act, 1956 which confers original jurisdiction on the trial Judge expressly makes an order passed by the trial Judge under section 202 appealable and, therefore, any order passed under that section would be appea- 1able under the Companies Act and is, therefore1 a judgment. [249 C-DJ BABULAL V. JAYABEN 191 Shankarlal Aggarwal v.

Shanker/al Poddar (1964] l SCR 711 (4) Whenever a trial Judge decides a controversy which effects valuable rights of. one of the parties it is a judgment within the 1neaning of the Letters Patent. [249 H] Radhey Shyam v. Shyam Behari Singh [1971] l SCR 783. (5) Where an order passed by the trial Judge a11owing amendment of the plaint, 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. (250 A-BJ Shanti Kumar R. Canji v. The Home Insurance Co. ofNew York [1975] 1 SCR 550. (6) Clause 15 of the Letters Patent does not define the term 'judgment'. The Letters Patent is a special law which carves out its own sphere and it would not be possible to project the definition of the word 'judgment' as defined in the Code of Civil Procedure. Letters Patent were drafted long before the Code of Civil Procedure of 1882 was enacted.

The word 'judgment' used in the Letters Patent does not mean a 'judgment' as defined in tht~ Code. At the same time it does not include every possible order-final, prelirr1inary or interlocutory passed by a Judge of the High Court. (251 D-E] · Mt. Shahzadi Begum v. Alak Nath & Ors. A. I. R. 1935 All 628. Under the Code of Civil Procedure a judgment consists of 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 for· mal 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 in the Code seems to be rather narrow and the limitations engrafted by section 2(2) cannot be physically imported into the definition of the word 'judgment' as used in clause 15 of the Letters Patent because the Letters Patent has advisedly not used the terms 'order' or 'decree' anywhere.

The intention 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 numbe:r of orders which would be appealable under the Letters Patent. The word 'judgment' has a concept of finality in a broader and not a narrower sense. (2 52 C] (4) An ordrr rescinding leave to tne trial Judge granted by him under clause 12 of the Letters Patent. (258 D] - (5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under section 80, bar against competency of the suit against the defendant even though the suit is kept alive. (258 D-E] (6) An order rejecting an application for a judgment on admission under Order 12 Rule 6.

(258 E-F] (7) An order refusing to add necessary parties in a suit under section 92 of the Code of Civil Procedure. [258 F] (8) An order varying or amending a decree. [258 F·G] (9) An order refusing leave to sue in forma paup. eris. [258 F·G] (IO) An order granting review. [258 F-G] ••1. (11) An order allowing withdrawal of the suit with liberty to file a fresh one. [258 G-H] (12) An order holding that the defendants are not agriculturists within the meaning of the special Jaw. [258 G-H] (13) An order staying or refusing to stay a suit under section 10 of the Code 8 of Civil Procedure. [258 HJ (14) An order granting or refusing to stay execution of the decree. [259A] (15) An order deciding payment of court fee against the platntiff. (259 B] (per Amarendra Nath Sen J concurring) - On a plain reading and proper con..

,truction of the various provisions of the Code of Civil Procedure, section 104 of the Code applies to the original side of the High Court of Bombay and the in1pugned order of the single Judge is appealable to a Division Bench under this section read with Order 43 thereof. (279 H; 280 A] -· The rjght of appeal under clause 15 of the Letters Patent is in no way curtailed or affected by section 104. By virtue of the provisions of section 104(1) a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein, even though such orders may or may not be appealable under clause lS of the Letters Patent as a judgment and the right of appeal under clause 15 remains clearly unin1paired.

[275 E-G] The argument of the respondent, based mainly on the provisions of sections 3 and 4 of the Code of Civil Procedure that even if various other provisions • of the Code apply to the Bombay High Court, including its original side, the provisions of section 104 read with Order 43 could not apply to lhe original side of a Chartered High Court because the jurisdiction conferred by clause 15 of the Letters Patent is a special jurisdiction is without force. [267 B-C] That by virtue of section 1 (which provides for territorial extent of the ope- ration of the Code) the Civil Procedure Code applies to the State of Maharashtra cannot be disputed. [268 E-F] Section 3 which deals with subordination of Courts to the High Court has no bearing on the point in issue and does not create any bar to the competence and maintainability of an appeal from an order passed by a single Judge on the original side if the order is otherwise appealable.

While dealing with any matter on the original side of the High Court a single Judge is in no way subordinate to the High Court. Nor again, could there be a question of his being a subordinate to the Division Bench which hears an appeal from his judgment. If any order passed by him on the origina 1 side is a 'judgment' within the meaning of clause 15 of the Letters Patent an appeal lies to a Division Bench. [272 E-G] Similarly there is no force in the argument that since section 104 and Order 43 of the Code affect the special jurisdiction conferred on the High Court under BABULAL V. JAYABEN 195 clause 15 of Letters Patent these provisions are not applicable to the present case. (273 C-DJ Section 4 of the Code cannot be said to be in conflict with the provisions of clause 15; nor can it be said that it limits or otherwise affects the power and jurisdiction of the High Court under clause 15.

[274 A·B] Section 4 provides that nothing in the Code ;shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction con· ferred by or under any Jaw for the time being in force. Clause 15 confers on the litigant a right to prefer an appeal from the court of original jurisdiction to the High Court in its appellate jurisdiction. II confers a right of appeal from a judgment of any Judge on the original side to the lligh Court. Though this clause is a special provision it cannot be said that it is intended to lay down that no appeal would lie from an order of a single Judge on the original side even if specific provision is made in any statute making the order appealable. By virtue of this provision any order considered to be a judgment would be appealable. If a statute confers on the li1igant right of appt~al, it cannot be said that such provision would affect tbe special provisions of clause 15.

This special power is in no way affected and is fully retained. In addition, the High Court may be competent to entertain other appeals by virtue of specific statutory provisions. [273 C-H: 274 A] On the contrary, the Code contains specific provisions indicating cases in which its provisions are or are not applicable, as for example section 5, which make(specific provision regarding the nature and manner of applicability of the Code to revenue courts. Sections 116 to 120 clearly inJicate that section 104 and Order 43 apply to the original side of the High Court Section 104 and Order 43 which is attracted by section 104, clearly provide that an appeal shall lie from the orders mentioned in rule 1 of Order 43. The itnpugned order is one such order and is clearly appealable.

When the legislature conferred such a right on the litigant a Court would be slow to deprive him of the: statutory right merely on the ground that the order had been passed by a single Judge on the original side of the High Court. [274 B-E] Section 104 recognises that, apart from the ordt~rs made appealable under the Code, there may be other orders appealable by any law for the time being in force. It further provides that no appeal will lie from any orders other than orders expressly provided in the Code or by any other Jaw in force. The right of appeal against a judgment of a single Judge on the original side under clause I5 is a right conferred by "any other Jaw in force". [275 C-E] Union ofIndia v. Mahindra Supply Co. [1962) 3 SCR 497 and Mt. Savitrl Thakurain v. Savi and Anr. [1921] P. C. 80 referred to. Mathura Sundari Dassi v. Haran Chandra Shaha, A. l. R. 1916 Cal. 361 and Lea Badin v. Upendra Mohan Roy Choudhary, A. I. R. 1935 Cal. 35 approved. Vaman Raoji Kulkarni v.

Nagesh Vishnu Joshi, A. I. R. 1940 Born. 216 overruled. Hurrish Chander Chowdhry v. Kali Sundari Debia, JO I. A. 4, held in applicable. Unless a right is conferred on him by Jaw, a litigant does not have an inherent right of appeal. An order appeable under the C. P. C. or any other statute becomes appealable because the. concerned statute confers a right of appeal on the litigant. But yet such an order may or tnay not be appealable as 'judgment• under clause 15 of the Letters Patent. An order appealable under clause 15 as a 'judgment' becomes appealable because the Letters Patent confers the right of appeal against such order as 'judgment'. Similarly an order appealable under the Letters Patent may or may not be appealable under the Code. [281 C-E] The Letters Patent, by clause 15,- confers a right of appeal against a 'judgment' and therefore an order which satisfies the requirements of 'judgment' within the meaning of clause 15 becomes appealable.

What kind of order will constitute a 'judgment' within the meaning of this clause and become appealable as such must necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed. (281 F·G] A comprehensive d-'finition of 'judgment' contemplated by clause 15 cannot properly be given. Letters Patent itself does not define 'judgn1ent'. The expres· sion has necessarily to be construed and interpreted in each case. But yet it is safe to say that if an order has the effect of finally determining any controversy forming the subject matter of the suit itself or any part thereto or the same affects 0 the question of the Court's jurisdiction or the question of limitation, it nonnally constitutes 'judgment' within the meaning of clause 15 of Letters Patent. [282 E-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No.

6~2 of 1981 Appeal by special leave from the judgment and order dated the 15th January, 1981 of the Bombay High Court in Letters Patent Appeal No. 611of1980. Safi J. Sorabji G. L. Sanghi, P. H. Parekh, P. K. Slzrojj and Gautam PhiFps for the Appellant. - R. P. Khambata, B. R. Agarwala, K. P. Khambata, Ashok C. Mehta and Miss Halida Khatun for Respondent No. 1. K. K. Venugopal, R. Vaidya, M. B. Rele, Rajiv K. Garg and -.. r- N. D. Garg for Respondent No. 2. The following judgments were delivered : FAZAL ALI, J. This appeal by special leave is directed against an Order dated January 15, 1981 of the Division Bench of the Bombay High Court by which the appeal filed by the appellant against the Order of the Trial Judge was dismissed on the ground that the appeal was not maintainable as the Order impugned was BA. BULAL v. JAYABEN (Pazal Ali, J. ) 197 not a judgment within the meaning of clause 15 of the Letters Patent of the High Court.

After hearing counsel for the parties at great length we passed the following Order on April 22, 1981 :- "We have heard counsel for the parties at great length. In our opinion, the appeal before the High Court was maintainable and the High Court should have entertained and decided it on merits. We, therefore, allow this appeal, s1! t aside the judgment dated January 15, 1981 of the Division Bench of the - Bombay High Court and remand the case to the same and decide it on merits. The High Court will dispose of the appeal as quickly as possible. The interim order passed by this Court on February 16, 1981 will continue until the High Court disposes of the appeal. Liberty to parties to approach the High Court for fixing an early date of hearing. In the circumstances, there will be no order as to costs. Reasoned judgment will follow. '' We now set out to give the reasons for the formal Order allowing the appeal which was passed by us on the aforesaid date. _,..... ,.

As we are not at all concerned with the facts of the case it is not necessary to detail the same in this judgment. Suffice it to say that the plaintiff-appellant had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suitproperty and injuncting the defendant from disposing of the suitproperty during the pendency of the suit. The single Judge after hearing the notice of motion dismissed the application for appointment of receiver as also for interim injunction. Thereafter, the plaintiff-appellant filed an appeal before the Bombay High Court which dismissed the appeal as being non-maintainable on the gruund that the Order impugned (order of the Single Judge) was not a judgment as contemplated by clause 15 of the letters patent of the High Court. Hence, this appeal by special leave.

The substantial questions of law raised in this appeal by the Counsel for the parties are as to the scopt:, ambit and meaning of the word 'judgment' appearing in clause 15 of the Letters Patent of the Bombay High Court and corresponding clauses in the Letters Patent of other High Courts. We might mention here that the significance of the word 'judgment' assumes a special importance in those High Courts which have ordinary civil jurisdiction depending on valuation of the suit or the action. These High Courts are Calcutta, Bombay, Madras as also Delhi and Jammu & Kashmir. The other High Courts do not have any ordinary civil jurisdiction but their original jurisdiction is confined only to a few causes like probate and administration, admiralty and cases under Companies Act. It seems to us that the interpretation of the word 'judgment' appea ing in the letters Patent of the High Court l1as been the subject-matter of judicial interpretation by decisions rendered by - ..

various High Courts in India. Unfortunately, however, the decisions are by no means consistent or unanimous. On the other hand, there appears to be a serious divergence of judicial opinions and a constant conflict between 1he High Courts regarding the true scope, ambi t and meaning of the word 'judgment' appearing in the Letters ·Patent so much so that a colossal controversy has been raging in this country for more than a century. Several tests have been laid down by leading judgments of the Calcutta, Madras and Rangoon High Courts. Other High Courts have either followed one or the other of the leading judgments regarding the validity of the tests laid down by the three High Courts. The Calcutta . High Court appears to have followed the leading case of its court in The Justices of the Peace/or • _. > Calcutta v. The Orhntal Gos Company (3) where Sir Richard Couch, C. J. had laid down a particular test on a rather strict and literal • interpretation of the Letters Patent.

Later decisions of the Calcutta High Court have followed this decision of Sir Richard Couch, C. J. with some modifications and clarifications. The Madras High Court has taken a very liberal view in its decision in T. V. Tuljaram Row v. M . K. R. V. Alagappa Chettior. (2) The Bombay High Court seems to have consistently taken the view that no interloclitory order can ever be said to be a judgment within the meaning of the Letters Patent so as to be appealable from the order of a Single Judge exercising original civil jurisdiction (hereinaf! er referred to as 'Trial Judge' ) to a larger Bench. The Rangoon High Court speaking through Sir Page, CJ. in In Re Dayabhai Jiwandas & Ors v. A. M. M. Murugappa Chet! iar (3) has placed a very narrow ,nterpretation on (J) Vlll Bengal L. R. 433. (2) ILR 35 Madras l. (3) ILR 13 Rangoon 457. BABULAL v. JAYABEN (Fazal Ali, J. ) 199 the term 'judgment' and has almost equated it with a decree passed by a civil court.

This Court also bas incidentally gone into the interpretation of the word 'judgment' and has made certain observations but seems to have decided the cases before it on the peculiar facts of each case without settling the conflict or the controversy resulting from the divergent views of the High Courts. This Court, however, has expressed a solemn desire and a pious wish that the controversy and the conflict between the various decisions of the High Courts has to be settled once for all some time or the other. Jn this connection, in 1 Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors. ( ) this Court observed as follows :- "In view of this wide divergence ofjudicial opinion, it may be necessary for this Court at some time or other to examine carefully the principles upon which the di:Oerent views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of th ) Court merely bars a second appeal from orders passed under 0.

43 R. 1 to Division Bench. A contrary view was taken by the Allahabad High Court in Ram Sarup v. Kaniz Ummehani(') where the following observations were made :- "It may, however, be conceded that this saving clause does not occur in sub-section (2) of section 104. But under the corresponding section 588 of the old Code, where the words were "orders passed in appeal under this section shall be final", their Lordships of the Privy Council in Hurrish Chunder Chowdhry v. Kalisunduri Debi (1882) ILR 9 Cal. 482 observed that section 588, which had the effect of restricting certain appeals, did not apply to a case where the appeal is from one of the Judges of the High Court to the full Court to the full Court.. In any case section 104 (2) does not contain any express provision which would suggest that the provisions of the Letters Patent have been abrogated. We accordingly hold that under clause I0 of the Letters Patent an appeal lies from the order of a single Judge passed in appeal.

" With due deference to the Hon'ble Judges we are of the opinion that the decision of the Allahabad High Court on this point is based on a serious misconception of the legal position. It is true that s. 104 was introduced by the Code of 1908 and the aforesaid section, as we have already indicated, clearly saved the Letters Patent jurisdiction of the High Court. From this, however, it does not necessarily follow that the restriction that there is no further appeal from the order of a Trial Judge to a larger Bench would be maintainable or per- missible. In the first place, once s. 104 applies and there is nothing in the Letters Patent to restrict the application of s. 104 to the effect that even if one appeal lies to the Single Judge, no further appeal will lie to the Division Bench.

Secondly, a perusal of clause 15 of the Letters Patent of the Presidency High Courts and identical clauses in other High Courts, discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passess an order, an appeal against the judgment of the said Trial Judge would (I) ! LR 1937 All. 386, lie to a Division Bench. Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that is in cases of appeals decided by a Single Judge under s. I00 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave 8 of the court and not otherwise. The relevant portion of cl.

15 of the Letters Patent may be extracted thus : "And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, • Fort William in Bengal from the judgment... of one Judge of the said High Court or one Judge of any Division Court, pursuant to section I08 of the Government of India Act, and that 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 the exercise of appellate jurisdiction 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 who passed the judgment declares that the case is a fit one for appeal. " A perusal of the Letters Patent would clearly reveal two essential incidents-(!

) that an appeal shall lie against any order passed by the Trial Judge to a larger Bench of the same High Court, and (2) that where the Trial Judge decides an appeal against a judgment or decree passed by the district courts in the mofussil, a further appeal shall lie only where the judge concerned declares it to be a fit one for appeal to a Division Bench. Thus, the special law, viz. , the Letters Patent, contemplates only these two kinds of appeals and no other. There is, therefore, no warrant for accepting the argument of the respondent that if Order 43 Rule I applies, then a further appeal would also lie against the appellate order of the Trial Judge to a Division Bench. As this is neither contemplated nor borne out by the provisions of the Letters Pantent extracted above, the contention of the respondent on this score must be overruled. ,..

A further second appeal lying to a Division Bench from an appellate order of the Trial Judge passed under order 43 Rule 1 is wholly foreign to the scope and spirit of the Letters Patent. Un- BABULAL v. JAYABEN (Faza/ Ali, J. ) 217 fortunately! however, the Allahabad High Court in Ram Sarup' s case (supra) refused to follow a Division Bench decision in Piari Lal v. Madan Lal(') and also tried to explain away the Full Bench decision in Ram Sarup's case (supra) where it was clearly pointed out that in such cases no further appeal would lie to the Division Bench under the Letters Patent. The distinction drawn by the Allahabad High Court regarding the application of s. I04 is a distinction without any difference. Sir John Edge, C. J. , in Muhammad Naim-ul-lah Khan's case (supra) dealing with this aspect of the matter observed thus:- • "It appears to me that the Code of Civil Procedure (Act No. XIV of 1882), as did Act No. X of 1877, contemplates a High Court in two aspects.

It contemplates a High Court doing the ordinary work of a Court of original and appellate jurisdiction; having the necessary powers of review ;. : and revision in certain cases and certain other powers such as are generally found vested in the Courts of the importance of High Courts ... whatever those powers may be, it is quite clear to my mind that the power conferred on a High Court under Chapter XLV of the Code of Civil Procedure are special powers and entirely distinct from the ordinary pewers required by the High Court in the carrying on of its ordinary judicial business. " and Mahmood, J.

observed thus : "To hold then that where this statute of ours, namely, our present Code of Civil Procedure, declares a decree or - order non-appealable, such decree or order can be made the subject of consideration by the whole of this Court under the Letters Patent, is to hold that wherever no appeal lies • to this Court the ceremony of presenting it to this Court to a Single Judge of this Court who would undoubtedly reject the appeal, makes it the subject of consideration by a Bench of the Court. " The other Judges agreed with the view taken by the Chief Justice and Mahmood, J. In Piari La/'s case (supra) which was decided afters. 104 was introduced in the Code of 1908, the following observations were made :- (1) [1917] ! LR 39 191. "A preliminary objection has been taken to the hearing of the appeal based on the Full Bench decision in the case of Muhammad Naimullah Khan v. Ihsan-ullah Khan (1892) ILR 14 All. 226.

Section 104 of the Code of Civil Procedure provides for the cases in which an appeal shall lie against an "order". Clause (ii) provides that "No appeal shall lie from any order passed in appeal under this section". The contention of the respondent in the preliminary -; objection is that no second appeal lies and reliance is placed upon the authority quoted to show that even a Letters Patent appeal is not permissible. We are of course bound by the Full Bench ruling of this Court. It is contended, however, that the words in section 588 of the Code of Civil Procedure, which was in force when the decision in the Full Bench case was given, differed from the words of. the present Code. The only difference is that in the old . ' Code the words were "The order passed in appeals under ·" this section shall be final", whereas in the present Code the words are "No appeal shall lie". We cannot see how the change in the words can in any way help the appellant.

Possibly the reason for the change is that under the words in the old Code it might have been argued that even a "revision" or a "review of judgment" would not lie against an order passed by an appellate court. We think the preliminar} objection must prevail and ·we accordingly dismiss ' the appeal with costs. " Thus, in these two cases it was clearly held that where a Trial Judge had passed an order in an appeal against an order passed by the district judge under order 43 Rule I, a further appeal under the Letters Patent was not maintainable. This view is fully supported by the express lauguage in which clause 15 of the Letters Patent has been couched, as referred to above. Thus the latter decision hof the Allahabad High Court in Ram Sarup's case (supra) was • clearly wrong in holding that an appeal under the Letters Patent would lie even against an appellate order of the Trial Judge passed under 0. 43, R. I even though it was prohibited bys. 104 (2) of the Code.

Similarly, in Chappan's case (supra) the Court on an interpretation of s. 588 (which now corresponds to the present Order 43 Rule 1) clearly held that an appeal would lie to the High Court BABULAL v. JAYABEN (Fazal Ali, J. ) 219 against the orders contemplated in various clauses of s. 588 of the Code of 1877. The Court held thus :- "The result of this judgment (so far as it applies to the question before us) appears to me to come to this, that if the order made by a single Judge only amounts to an order such as is intended by chapter XLIII of the Code, it is not appealable unlesss it is within section 588. " The Madras case heavily relied on the decision of the Privy Council in Hurrish Chunder Chowdry' s case (supra). In Lea Badin v. Upendra Mohan Roy Chaudhury & Ors. (') while criticising the judgment of Sir Richard Couch, C. J.

in The Justice of the Peace for Calcutta (supra) the Court as an alternative argument clearly held that Order 43 Rule I would apply pro tanto to the Trial Judge and on this ground also the order would be appfalable ti a Division Bench. In this connection. the celebarated jurist Sir Manmatha Nath Mookerjee, J. observed as follows:- "But there is another and a far simpler ground on which it must be held that an appeal is competent. The order in the present case is one for which a right of appeal is provided in cl. (s) of r. I of or. 43 of the Code. Under the present Code (Act V of 1908) it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of the High Court. " '· Another important decision regading the applicability of Order 43 Rule I to an order passed by the Trial Judge was rendered by a Full Bench in Mathura Sundari D1ssi v. Haran Chandra Shaha 2 - & Ors. ( ) where Sanderson, C. J. observed thus :-· · "By the terms of s.

ll7, the Code is made applicable to • the High Court, and 0. 43, R. I gives a right of appeal in the very case under discussion. But it is said that this Code and the rules made under it do not apply to an appeal from a learned Judge of the High Court. I cannot follow that argument. It is part of the defendant's case that O. 9 R. 8 applies. · That order is in effect a part of the Civil Procedure Code. It seems to me strange that the plaintiff 0) (1934-35)39 CWN 155. (2) AIR 1916 Cal. 361. should be subjected to 0. 9, R. 8 and be liable to have his suit dismissed for want of appearance, yet when he has had his suit dismissed under one of the rules of the Code and wants to call in aid another of the rules which-when his application for reinstatement has been refused-gives him a right of appeal against that refusal, he is met with the argument that he cannot call in aid that rule because there is no appeal from the learned Judge of the High Court under the Civil Procedure Code.

I think this is not a true vie,w or a reasonable construction to put upon the Code and the rules made under it. In my judgment, the Code and the rules do apply and the plaintiff has a right of appeal. " and Woodroffo 'J' made similar observations :- "Whether or not as a question of jurisdiction an appeal lies under clause 15 of the Letters Patent in a case in which an appeal is allowed under the Code, I think it may be said that there are primq facie grounds for holding that an appeal should be held to lie under the Letters Patent where it is allowed under the Code;for the fact that the Legislature has in the Code allowed an appeal in a particular case, affords to my mind prima facie grounds for supposing that that case is ofa class which this Court considers appealable nder its Letters Patent ... Looking at the nature of the order appealed from, I think I should hold that it is appea/able as a 'judgement' under the Letters Patent. " and Mookerjee, J.

observed thus : - "The term "Rule" which finds a place in s. 117 is defined in clause 18 of s. 2 of the Code to mean "a rule contained it the First Schedule or made under s. 122 or s. 125. " Our attention has not been drawn to any such • rule which makes 0. 43, R, 1, clause (c) inapplicable. On ,. ,__ 4 the other hand, 0. 49, R. 3 which excludes the operation of other rules, lends support to the contention of the appellant that 0. 43, R. I clause (c) is applicable to the present appeal...... "S. 104 of the Code of 1908 is materially different from S. 588 of the Code of 1882. It provides that lie from BABULAL V. JAYABEN (Fazal Ali, J. ) 221 the orders mentioned in the first clause of that section and, save as otherwise expressly provided in the body of the Code or by any law for the thne being in force from no other orders. " The effect ofs.

104 is thus, not to take away a right of appeal given by clause 15 of the Letters Patent, but to create a right of appeal in cases even where clause 15 of the Letters Patent is not applicable... .. I hold accordingly that this appeal is competent under Clause (c), R. l, 0. 43 of the Civil Procedure Code. I am further of opinion that the appeal is competent also under Clause 15 of the Letters Patent. " (Emphasis ours) • We find ourselves in complete agreement with the view taken and the reasons given by the three eminent Judges in the aforesaid case which furnishes a complete answer to the argu·ments of the respondents that Order 43, Rule 1 will have no application to internal appeals in the High Court under the provisions of the Letters Patent.

A similar view was taken in Lea Rodin's case (supra) where the foll owing observations regarding the applicability of Order 43 Rule I in respect of an order passed by a Trial Judge were made:- "As an order refusing an application for the appointment of a receiver based on provision in the indenture of hypothecation, that on a breach of any one of the covenants contained therein the plaintiff's assignor would he entitled to have a receiver appointed, the order has determined a right which is one of the matters in the controversy itself, and so it satisfies the definition of Couch, C. J. , as well. The order appealed from in this case is, in our opinion, a 'judgment' within the meaning of Cl. 15, Letters Patent. We may add that there are decisions of this Court in which orders discharging or refusing to discharge a receiver appointed in a suit, after the suit had come to an end or had become infructuous, have been held to be 'judgments' and so appealable ...

But there is another and a far simpler ground on which it must be held that an appeal is competent. The order in the present case is one for which a right of appeal is provided in cl. (s), R. 1, 0. 43 of the Code. Under the present Code (Act 5 of 1908) it cannot be contended that the Code and the Rules made under it do not apply to an appeal from a learned Judge of the High Court, such a contention was elaborately dealt with and repelled in the case of Malhura Sundari Dassi v. Haran Chandra Shaha & Ors. (AIR 1916 Ca. 361). " (Emphasis ours) Jn Too/see Money Dassee & Ors. v. Sudevi Dassee & Ors. (supra) Maclean, C. J. while relying on the decision of the Judicial Committee in Hurrish Chunder Chowdry's case made the following pithy observations : "To my mind the first of these points has been authoritatively decided against the view of the present respondents by the Judcial Committee of the Privy Conncil in the case of Hurrish Chunder Chowdhry v. Kali Sunderi Debi (10 I. A. 4).

I need not travel into the facts of that case, but there their Lordships said at page 494 of the report in the Indian Law Reports: "It only remains to observe that their Lordships do not think that section 588 of Act X of 1877, which has jthe effect of restricting certain appeals, applies to such a case as this where the appeal is from one of the Judges of the Court to the Full Court. " It is clear from the report that the point was elaborately argued, and ) the clear expression of their Lordships' opinion must be read in connection with that argument. " and Prinsep; J.

who agreed with the Chief Justice, made the following identical observations :- - "We have it, therefore, that if beyond clause 15 of the Letters Patent, 1865, section 588 of the Code of Civil Procedure gives the right of appeal against any order of the fdescription specified therein, there is no Court of Appeal constituted to hear it, if such order not being a judgment had been made by the Judge on the Original Side of the High Court. I understand this to mean that section 588 does not affect any matter coming within clause 15 of the Letters BABULAL v. JAYABBN (Pazal Ali, J. ) 223 Patent, and if I may venture to •say so, the reasons which led to the expression of that opinion and which have not been given in the jndgmeilt reported may 'be those stated by me for arriving at the '. same conclusion. I have no ,. 'donbt that we are bound to follow to the fullest extent the opinion expressed by their'.

Lordships of the Privy Conncil that section 588 of the iCode does not apply to the case now ! before us, and that this matter has thus become settled law". And Ammer Ali, J. while dissenting from the applicability ~of s. 588 held that the order appealable under s. 588 was a judgment within the meaning of the Letters Patent. Two decisions of the Rangoon High Court also have consistently taken the view that the provisions of s. 104 read with Order 43 Rule I apply to the Trial Judge. In P. Abdul Gaff'or v. The Official Assignee(1) the following observations were made: For an order made in exercise of the ordinary original civil jurisdiction to be appealable, it must come either under Order XLIII, Rule 1 or be a judgment within the meaning of Section 13 of the Letters Patent, so that for the purpose of this application the appellant must establish that it is a judgment within the meaning of section 13".

(Emphasis ours) The question of the applicability of Order 43 Rule 1 to an appeal from the Trial Judge under the Letters Patent was raised and • decided by the Jammu & Kashmir High Court in Abdul Samad & Ors. v. The State of J & K (') a decision to which one of us (Fazal Ali, C. J. as he then was) was a party. After an exhaustive review of various decisions on the subject, the High Court observed as follows:- The legal position that emerges, therefore, is that orders of the character specified in Section 104 and Order 43, Rule I, Civil P. C. excepting clause (JJ) tht:reof, would (I) ! LR (1925] 3 Rangoon 605. (2) AIR 1969 J& K 52. be construed as judgments and an appeal against any one of such orders would lie to the ...... Division Bench of the High Court notwithstanding the fact that it is passed by one of the judges of the High Court sitting on the original side".

8 It may be mentioned that like the Presidency High Courts, the High Court of Jammu & Kashmir had also been invested with ordinary civil original jurisdiction. The question of the applicability of Order 43 Rule 1 to an appeal against an order of a Trial Judge to the Division Bench was directly in point and fully considered by a Division Bench of the - Calcutta High Court and a Full Bench of the Rangoon High Court. 1 In Kumar Gangadhar Bag/a v. Kanti Chunder Mukerjee & Anr. ( ) while dwelling on this aspect of the matter it was observed as follows: "Mr. Bose did not seek to argue, that the formal Order of the 7th of June, 1935, was one of the appealable orders provided for in the Code of Civil Procedure. On the contrary, he went so far as to aver-with considerable vehemence - that neither sec. 104 nor order XLIII, r. 1 of the Civil Procedure Code has any application to the High Court. I would point out that it is clear from sec. 117 of Code of Civil Procedure and still clearer from Or.

XLIX, r. 3, C. P. C. , that both sec. 104 and Or. XL/II, r. I, do apply to the High Court". (Emphasis ours) It is manifest from the observations made above that in view of the clear and explicit provisions of s. 117 and Order 49 Rule 3 which while exempting other provisions from the jurisdiction of the High Court did not exempt the various clauses of Order 43 Rule 1. An identical view seems to have been taken by Sir Page, C. J. in a Full Bench decision of the Rangoon High Court in ln re: Doyabhai ,J - • Jiwandas & Ors. (supra) where the Chief Justice pithily observed as follows :- "In many statutes in India, of c'>urse, a Right of appeal from an order passed pursuant to the statute is expressly provided, and in such ~ases an appeal will lie on the terms and conditions therein prescribed. I will not pause to enumerate or discuss these enactments, although (I) 40 C. W. N. 1264. BABULAL v. JAYABEN (Faza/ Ali, J. ) 225 many such statutes were cited at the Bar.

But, except where otherwise a right of appeal adhoc is given under some statute or enanctment having the force of a statute, the right of appeal from orders that do not amount to •·judgment" is regulated by the provisions of the Code of Civil Procedure; (see section I04 and Order 43, Rule 1)". Thus, there appears to be a general consensus of judicial opinions on the question of the applicability of Order 43 Rule I to Letters Patent appeals . • This now brings us to the second Iimb of the argument of - Mr. Sorabjee that even assuming that Order 43 Rule 1 does not • apply to the High Court so far as the Trial Judge of the said court is concerned, there can be no doubt that the orders indicated in various clauses of Order 43 Rule 1 possess the attrib_utes and incidents of a final order which conclusively decides a particular issue so far as the Trial Court is concerned.

Thus, there can be no difficulty, even without applying Order 43 Rule I to hold hy process of analogical reasoning that the appeals and Orders mentioned in the various sub-clauses would amount to a judgment within the meaning of cl. 15 of the Letters Patent because they contain the traits, trappings and qualities and characteristics of final order. In other words, the argument advanced was that we could still apply the provisions of Order 43 Rule I by the process of analogy. We fully agree with this argument because it is manifest that the word 'judgment' has hot been defined in the Letters Patent but whatever tests may be applied, the order passed by the Trial Judge appealed against must have the traits and trappings of finality and there can be no doubt that the appealable orders indicated in various clauses of Order 43 Rule 1 are matters of moment deciding valuable rights of the parties and in the nature of final Orders so • as to fall within the definiton of 'judgment'.

This Court in Radhey Shyam v. Shyam Behari Singh(') clearly held that an application under Order 21 rule 90 to set aside the auction-sale is a judgment as the proceeding raises a controversy between the parties regarding their valuable rights. In this connection, this Court observed thus :- "In our view an Order in a proc~. eding under 0. XX! , r. 90 is a "judgment" inasmuch as a proceeding raises (I) [1971] I SCR 783. 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". On a parity of reasoning, an Order refusing to appoint a 8 receiver or grant an injunction and similar Orders mentioned in various clauses of Order 43, Rule I fall within the tests laid down by this Court in the aforesaid case. We are aware that there are some decisions which have taken a contrary view~ by holding that s.

l04 read with Order 43 Rule l • does not apply to a Trial Judge under the Letters Patent. These decisions do not appear to have considered the various shades and aspects and the setting of the provisions of ss. I04 and 117 and Order 49 Rule 3 but seem to have proceeded on the basis that the Letters Patent being a special law or a special jurisdiction, the same over-rides s. 104 which in terms does not apply where a special law makes certain special provisions. We now proceed to discuss these cases briefly. In Pandy Walad Dagadu Mahar & Anr. v. Jammadas Chotumal Marwadi (') the identical point which is at issue in the instant appeal was not involved and the finding given by the High Court was merely incidental. The Division Bench seems to have relied on a judgment of Sir Basil Scott and Hayward, JJ. where the question was only incidentally dealt with. Martin, J.

In Pandy's case observed thus :- "Shortly stated, therefore, this Full Bench decision amounts to this, that appeals under the Letters Patent are governed by the Letters Patent, and appeals under Code are governed by the Code. Further, the Code only deals with appeals from certain Courts and it does not deal with • appeals within the High Court from the decision of one Judge of the Court to another. That is in my opinion, the true view of the relative position of the Letters Patent and the Code''. With due respect, a close analysis of this decision would reveal that the Judges followed a fallacious process of reasoning, According to their opinion, the appeals under the Code of Civil (1) AIR 1923 Born. 218. BABULAL v. JAYABEN (Fazal Ali, J. ) 227 Procedure and those under the Letters Patent were, so to say two separate compartments having different spheres of their own.

With due deference, we might point out that such a view is based on a total misinter pretation and misconstruction of the true nature and object of the Code of Civil Procedure and the Letters Patent. In~fact, as we have pointed out earlier, there is no inconsistency, whatsoever between the Letters Patent and s. 104 read with order 43 Rule I. The first premise of the Court -- that internal appeals in the High Court were governed ' by the Letters Patent alone and not by the Code appears • to be legaUy fallacious. We have already pointed out that a large number of decisions, including the Privy Council, have clearly - • taken the view that although the Letters Patent is a special law certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a Trial Judge to a larger Bench or to quote the Bombay Judges to 'internal appeals'. Secondly, the Court completely overlooked the legal effect of s.

117 and Order 49 Rule 3 which completely demolishes the presumptuous process of logic adopted by the court. Thirdly, the Court appears to have overlooked that far from excluding the Code there could be other special Acts which could and did confer additional jurisdiction even in internal appeals to the High Court, viz. , from an order passed by a Trial Judge to a larger Bench, for instance, s. 39 of the Arbitration Act or s. 202 of the Indian Companies Act and other similar local or special Acts. If these special Acts could without affecting the jurisdiction of the Letters Patent or overriding the same provided a supplementary or additional jurisdiction, there was no reason why the Code of Civil Procedure also could not do the same particularly when the Trial Judge had to adopt the procedure contained in the Code, starting from the presentation of the plaint to the delivery of judgment.

Fourthly, the Division Bench does not seem to have considered the fact that what • the Letters Patent did was merely to confer original civil jurisdiction on the High Court to be exercised by a Single Judge, who would undoubtedly be a Trial Judge, but of an elevated status so that only such suits could be filed in the Court of the said Judge as are of a very high valuation which may differ from High Court to High Court. This was done in order that in heavy suits involving substantial questions of fact and law, the hearing of the suit by senior Court of the status of a High Court Judge would repose, endeanr and generate greater confidence in the people. Thus if, interlocutory orders passed by District courts in the mofussil could be appealable to the High Court, there was no reason why inter- ,_ locutory orders passed by a Trial Judge could not be appealable to a larger Bench irrespective of the question whether or not they were judgments whithin the meaning of cl.

15 of the Letters Patent. This appears to us to be the cardinal philosophy of the Code in applying the provisions of Order 43 Rule l, to the original suit tried by the Single Judge (Trial Judge). 8 Furthermore, the concept of internal appeals in the High Court seems to be a legal fiction without any factual existence imported by some of the High Courts in order to get rid of some of the provisions of the Code of Civil Procedure which is totally opposed not only to the aim and object of the Code but also to the very spirit of the Letters Patent. In a later judgment of the Bombay High Court in Vaman Ravji Kulkarni v. Nagesh Vishnu Joshi & Ors. ,(') the following observations were made :- "I am, with respect, of opinion that the view taken ,/by the full Bench of the Madras and Calcutta High Courts in the cases referred to above is correct, and that the question must be regarded as having been finally settled by the decision of the Privy Council in 10 LA. 4. (Hurrish Chunder Chowdry v.

Kali Sundari Debi) S. 104. Civil P. C. , which refers only to appeals to the High Court from Courts subordinate to it, cannot apply to appeals filed under Cl. 15 of the Letters Patent from a single Judge of the High Court to a bench. (Wadia, J. ) There can be no doubt that the provisions of the Letters Patent have conferred special powers regarding appeals within the High Court. Those powers are not specifi- • cally taken away bys. 104, Civil P. C. and are not, therefore, affected by it..... Special enactments are not repealed by later general Acts unless there be some express reference to the previous legislation or a necessary inconsistency in the two Acts standing together, which prevents the maxim from being applied. Sub-section (2) of s. 104, Civil P. C. , does not refer to the Letters Patent and say that in spite of Cl. 15 of the Letters Patent no appeal lies from any order passed in an appeal under Sub-s. (I). Sub-s. (2) is in no way (1) AIR 1940 Born. 216. BABULAL V.

JAYABBN (Fazal Ali, J. ) 229 inconsistent with cl. 15 of the Letters Patent and the two can stand together, the former appplying to appeals under the Code, and the latter to special appeals within the High Court... I am satisfied that s. 104, Civil P. C. does not control cl. 15 of the Letters Patent, and in spite of the absence of a saving clause in suh-s. (2) of s. 104 does not affect or cut down the right of appeal conferred by the Letters Patent. " (Lokur, J. ) As regards the first part of the observations of Wadia, J, we are constrained to observe that the learned Judge has not correctly construed the true ratio of the decision of the Privy Council in Hurrish Chunder Chowdry's case (supra) where, as indicated, the Privy Council has in express terms held that s. 588 (which now corresponds to Order 43 Rule I) clearly applies to appeals against orders of a Trial Judge to a larger Bench of the High Court. Similarly, the observations made by Lokur, J.

run against the plain interpretation of s. 104 by assuming that there is a confiict between s. 104 read with Order 43 Rule I and the Letters Patent when in fact, as pointed out, there is no such conflict at all-all that s. l04 does is to give an additional jurisdiction apart from the Letters Patent which is in no way unconstitutional with the Letters Patent. We may like to observe here that there is no non-obstante clause in the provisions of the Letters Patent to indicate that the provisions of the Code of Civil Procedure, particularly s. I 04 would not apply either expressly or by necessary intendment. In this view of the matter, therefore, we are clearly of the opinion that the Bombay decisions are wrongly decided and must, therefore, be overruled. In Vishnu Pratap and Ors. v. Smt. Revati Devi and Ors. (') the Court held that no appeal against an order passed by a Trial Judge under s. 202 of the Companies Act would lie to a Division Bench in view of the Letters Patent.

This argument was negatived and overruled in Shankarlal Aggarwal's case (supra) as already discussed above. As regards the applicability of Order 43, the following observations were made in Vishnu Pratap's case: "It is true that Orders 40 & 43 both apply to the High Court but the question here is whether 0. 43 makes provision for an appeal from one court to another or it is intended . to cover cases of an appeal from one Judge to a bench of (I) AIR 1953 All. 647. the same Court.... While s. 96 deals with original decree, s. 104 Civil P. C. deals with orders, not being decrees, and the orders that are appealable are set out under 0. 43, C. P. C. The question of an appeal from one Court to another Court is no doubt governed by the provisions of the Code of Civil Procedure but the provision for appeal from one Judge of a Court to a bench of the same Court is not provided for by the Code and must be governed by the Letters Patent. If s. 104 read with 0.

43 makes all these orders appealable then what would be the Court to which appeals would lie from an order passed by a Division Bench and not by a single Judge. We are not satisfied that s. 104 or 0. 43 ever intended to deal with appeals from a Judge or Judges of one Court to a larger number of Judges in the same Court. It is no doubt true, as has been held by their Lordships of the Judicial Committee in-'Mt. Sabitri Thakurain v. Savi' (AIR 1921 PC 80) thats. 104 as well as 0. 43 apply to High Courts but it does not mean that they give any right to an appeal from an order by a Judge or Judges of that Court to a larger number of Judges of the same Court independently of the Letters Patent of the Court. As we have said if 0. 43 or s. 104, Civil P. C.

, were made applicable per se, without reference to the Letters Patent, then even an order passed by a bench would come under those provisions, but before an appeal can be filed there will hnve to be a Court constituted for I' hearing an appeal and the only provish'n for hearing an appeal, from the judgment of a single Judge, by a bench of two or more Judges of the same Court is contained in the Letters Patent of the Chartered High Courts. An Order, to come under the Letters Patent must be a judgment, and, if an order is not a judgment, then cl. I0 of the Letters Patent would not apply and there is no provision for constituting a bench of more than one Judge to hear such an appeal. We, therefore, fail to understand how 0. 43 R. I, or s. 104, Civil P. C. without any reference to cl. IO of the Letters Patent, can help the appellants. " , In this case also. the line of reasoning adopted by the "court is the same as that of the Bombay High Court referred to above. BABULAL v.

JAYABEN (Fazal Ali, J. ) 231 One of the reasons given is that while Order 43 makes provision for appeal from one court to another, it is not intended to apply to an appeal from one Judge of the High Court to a bench of the same Court. No reasons have been given by the Judges for holding why this is not so particularly in the face of the clear provisions of s. 117 and Order 49 Rule 3, as discussed above. Thus, the first part of the reasoning of the High Court is totally irrelevant and wholly unl intelligible. The point at issue is ifs. 104 read with Order 43, Rule I applies to an order passed by District Courts in the mofussil, why • could it not apply to the one passed by the Trial Judge when the Letters Patent does not in any way bar such an appeal.

Another ground taken by the Court is that if Order 43 Rule I is made applicable to the High Court then a strange anomaly will arise in that where an appeal lies to the Division Bench, how could a further appeal lie to some other bench of the court. This argument 0 also is based on a misconception of Order 43 Rule l. It is manifest that if Order 43 Rule I were to apply to Orders passed by the Trial Judge, the Order would be one passed by only one Judge of the High Court and, therefore, in the context of the original jurisdiction exercised by a Single Judge ofthe High Court, the appellate jurisdiction would lie with the Division Bench as contemplated by the Letters Patent and the Rules framed by the High Court. We are unable to see any anomaly or inconsistency in this position. Thirdly, the court seems to have relied on a decision of the Privy Council in Mt. Sabitri Thakurain v. Savi (AIR 1921 PC 80) and has interpreted the ratio of this case to mean that s.

I04 would not apply to High Courts which is exactly what the Privy Council does not say. With due respeel, therefore, the learned Judges have not correctly appreciated the decision of the Privy Council which has nowhere indicated that Order 43 Rule I would not apply to internal appeals in the High Court. On the other hand their Lordships of the Privy Council had held to the contrary as discussed above. For these reasons, therefore, we are of the opinion that this case has also not been. :lcorrectly decided and we disapprove the reasons given and the decision taken in this case. We might also notice a full Bench decision of the Nagpur High Court in Madhukar Trimbaklal v. Shri Snti Godawari Upasani Maharaj ofSakori & Ors. (') where Niyogi, J. observed as follows :- "Clause 10, Letters Patent defines the appellate jurisdiction of the High Court vis-a-vis the judgment passed by a single Judge of that Court.

It should be observed that the Civil Procedure Code does not make any provision in this behalf. The right of appeal from a decree of a single Judge to the High Court is not governed by s. 96 or s. 100 or s. 104, Civil P. C. , but by cl. 10, Letters Patent............ This right of appeal depends on the special provision made in the Charter. S. 4, Civil P. C. , provides that the Code does not affect any special jurisdiction or power . conferred, or any special form of procedure prescribed by or under any other law for the time being in force. Since the special jurisdiction or power is conferred on the High Court by cl. 10, Letters Patent the provisions in the Civil Procedure Code regarding appeals cannot come into operation in regard to an appeal from a single Judge of the High Court to the High Court"'. With due respect, we are unable to agree with the opinon expressed by Niyogi, J.

who has made a bald statement that the Code of Civil Procedure does not make any provision in regard to an appeal from an order passed by a Trial Judge to a Division Bench and that the right of appeal from a decree of a Civil Judge to a High Court is not governed by s. 100 or s. 104 but by cl. 10 of the Letters Patent oc the Nagpur High Court. Here again, the learned Judge seems to have committed an error apparent on the face of the record. An examination of the language of sections 96 to 100 would clearly show that the scope of these sections is quite different from that of s. 104. Sections 96 to 100 expressly deal with the forum of appeal provided by the Code against decrees or orders amounting to decrees passed by the District Court in the mofussil. Section 104 is couched in very general terms and cannot be limited to appeals against orders passed by the courts contemplated in sections 96 to 100. Moreover, s.

104 does not deal with appeal against a decree at all but provides a forum for appeal against orders under Order 43 Rule 1 which are mainly orders of a final or quasifinal nature passed during the pendency of a suit. Section ! 04, therefore, has a much wider application, as discussed above, and neither overrides the Letters Patent nor is it inconsistent with the same. For these reasons, therefore, we are unable to accept the line of reasoning adopted by the aforesaid High Court in holding (1) AIR [1940] Nagpur 39. BABULAL v. JAYABEN (Fazal Ali, J. ) 233 that s. 104 does not apply to internal appeals in the High Court and we accordingly overrule this decision. A some what identical view was taken by a later decision of the Nagpur High Court in Ratanlal Jankidas Agarwal v. Gajadhar & 1 Ors. ( ) Where the following observations were made -- "Firstly, 0. 43 has not been made applicable to appeals from appellate decrees by 0. 43, R. 1, though the rules of 0.

41 have been made applicable to them. So s. 104 bars an appeal from the order. Moreover, \the Civil Procedure Code makes no 'provision for an appeal within the High Court, that is to say, from a single~Judge of the High Court......... Power is given to a Division Bench of the - High Court to hear appeals from decisions of a single • Judge of the High Court only under cl. JO of the Letters Patent". For the reasons which we have already given above, we hold that the learned Judges have fallen into the same error which was committed by the earlier Nagpur case. The first reasoning given by Mangalmurti, J. that Order 43 is not applicable to appeals from appellate decrees is wholly irrelevant because the question is whether under Order 43 Rule l, an appeal could lie from a Trial Judge to a Division Bench of the High Court. Secondly, the learned Judge says that s.

104 bars a second appeal from the order and that the • Code of Civil Procedure makes no provision for appeal within the High Court. Here again, the learned Judge is wrong because we have already pointed out that as far back as Hurrish Chunder Chowdry's case (supra) it was clearly held by the Judicial Committee that s. 588 was applicable even to internal appeals in the High Court. On a parity of reasoning, therefore, on the basis of which we have overruled the decisions of the other High Courts, taking a similar view we find ourselves unable to agree with the view taken by Mangalmurti and Bose, JJ. in the aforesaid case and hold that this case is not correctly decided. A later decision of the Allahabad High Court also seems to have taken the same view. In Standard Glass Beads Factory & Anr. 2 v. Shri Dhar & Ors. ( ) the following observations were made:- "Such an order if made by a subordinate court is appealableunderOr. 43 R. l, C. P. C.

; it is, as we have seen an Order from which in England an appeal lies, without (l) AIR 1949 Nagpur 188. . (2) AIR 1960 All. 692. leave,'to the Court of Apneal. If the narrower view of the meaning of the word 'judgment' be correct such an order when made by a Judge of a High Court in India exercising original jurisdiction would not be appealable". Here also·. : with due deference to the Judges constituting the Full Bench, we are of opinion that they committed an error in drawing inspiration from the procedure prevailing in England in the court of appeal. In the first palce the hierarchy of the Conrts in India under the Civil Procedure Code is essentially different from that in the United Kingdom. Secondly, there is no provision existing in the English law corresponding to ,. Order 43 Rule I of an appeal from a Trial Jndge to a Division Bench under various,circumstances.

- Lastly, this case does not seem to have ,considered a large number of decisions referred to by us, clearly holding that s. I04 read with Order 43 Rule I applies to appeals under the Letters Patent in the High Court. For these reasons, therefore, we hold that this case also was not correctly decided and must be overruled. Another case taking a contrary view is again a case of the Bombay High Court which also makes a rather interesting reading. In J. K. Chemicals Ltd. v. Kreba and Co. (1) Desai, J. speaking for the court observed on this part of the case thus : "The reply to the said argument is that the provisions of s. 104 and 0. 43, R. I provide for an appeal only from the subordinate 'Court to the higher Court and not from one part of the Court to the other. It has been held that the provisions relating to appeals contained in the Civil Procedure Code deal with appeals from subordinate Courts to higher Courts :and do not deal with appeals from the .

decisions and decrees of the High Court in the exercise of its ordinary or extra-ordinary civil jurisdiction except so far as the appeal to the Supreme Court is concerned. The subject of an appeal from the decision of a single Judge of . ~ . the High Court to a Division Bench of the same High Court is dealt with only under the Letters Patent and such right is not governed by the provisions of the Civil Procedure Code relating to appeals. This view has been taken consistently by the High Courts in India and also by the Privy Council (see Hurrish Chunder v. Kali Sunderi Debi- (1883) ! LR 9 Cal. 482 at p. 494)". (1) AIR 1967 Born. 56. BABULAL v. JAYABEN (Faza/ Ali, J. ) 235 The first part of the observations follows the reasonings of the two decisions of the Bombay High Court, discussed above, and are therefore open to the same criticism which we have levelled against the previous decisions.

Secondly, the court seems to think that all the High Courts in India have consistently taken the view that Order 43 Rule 1 does not apply to internal app ' of Civil Procedure 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 T! ght of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appeal able 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 foll right to show that the defence is BABULAL v. lAYABEN (Faza/ Ali, J. ) 255 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 cl. 15 of the Letters Patent but will be purely an interlocutory order. Similarly, suppose the Trial Judge passes an Order setting aside an exparte decree against the defendant, which is not appealable under any of the clauses of 0. 43 R. 1 though an order rejecting an application to set aside the decree passed exparte falls within 0. 43 R. I cl.

(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-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 in terlocutory judgment and is therefore, appealable to a larger Bench. ) ' In the course of the trial, the Trial Judge may pass a number .. of Orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e. g.

, an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter agai11st one - ' party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the Order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned.

Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment. We might give another instance of an interlocutory order which amounts to an exercise of dis. cretion and which may yet , amount to a judgment within the meaning of the Letters Patent. Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge . is purely discretionary and interlocutory it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit.

Such an order, therefore, though interlocutory in nature contains the attributes and charac· n teristics of finality and must be treated as a judgment within the meaning of the Letters Patent. This is what was held by this Court in Shanti Kumar's case (supra), as discussed above. Let us take another instance of a similar order which may not amount to a judgment. Suppose the Trial Judge allows the plaintiff to amend the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation and does not work serious injustice to the defendant who would have ample opportunity to disprove the amended plea taken by plaintiff at the trial. In such cases, the order of the Trial Judge would only be a simple interlocutory order without