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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

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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

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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.

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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,

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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

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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,

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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.

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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.