Delhi High Court
Exports Unlimited vs Delhi State Industrial Development ... on 20 March, 1996
Equivalent citations: 1996(37)DRJ109
Author: R.C. Lahoti
Bench: R.C. Lahoti, Lokeshwar Prasad
JUDGMENT R.C. Lahoti, J.
(1) THESE- two appeals provide an opportunity for construing the nature of the orders passed in civil suits by the learned Single Judges sitting on the Original Side when the orders would amount to 'judgment' within the meaning of Section 10(1) of Delhi High Court Act, 1966 so as to make appeals there against maintainable.
(2) In FAO(OS) 56/96 an application filed under Order 19 Rule 2 Civil Procedure Code seeking cross-examination on affidavits filed by the opposite party in the course of proceedings under Section 20 of the Indian Arbitration Act, 1939 has been rejected by the order impugned. We must place on record our appreciation of the fairness of learned counsel for the appellant - Mr.P.L.Aggarwal, advocate, who faced with the challenge to the maintainability of appeal filed by him brought out and placed before the Court several decisions rendered by Delhi High Court, whether they favoured his viewpoint or not. That is what is expected from a counsel, an officer of the Court, discharging his duty towards the court, as paramount as his duty towards the client.
(3) FAO(OS) 61/96 is directed against an order allowing an application under Order 11 Rule 1 & 4 Civil Procedure Code seeking leave to deliver interrogatories on behalf of the plaintiff for examination of the defendant No.2/.appellant allowed in part. Mr.P.A.S. Rao, the learned counsel for the appellant has supplemented the submissions made by Mr.Aggarwal, advocate.
(4) Section 10(1) of the Delhi High Court Act, 1966 provides as under :- "10.Powers of Judges (1) Where a single judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section(2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court. (2) xxxxxxxxx (5) What would be a 'judgment' for the purpose of Section 10(1) of the Act has been subject matter of judicial scrutiny and interpretation in a good number of decisions. It will be useful to notice a few judgments cited at the bar.
5.1In Begum Aftab Zamani VS. Shri Lal Chand Khanna Air 1969 Delhi 85 matter had come up before a Full Bench of Delhi High Court for the purpose of deciding the amount of court fee payable on appeal presented under Section 10 of Delhi High Court Act and in that context the word 'judgment' also came up for consideration. It was held that a judgment may be either final or preliminary or interlocutory. Regard must be had not to the form of adjudication but to its effect upon the suit or the civil proceedings in which it is made. If its effect is to put an end to the suit or proceeding, or if its effect, if not complied with, is to put an end to the suit or proceeding, the adjudication is indisputably ajudgment. The relevant factors to be taken into consideration would be the nature of the order and its effect upon the suit or the civil proceeding in which it is made; each case depending on its peculiar facts and circumstances.
5.2University of Delhi VS. Hafiz Mohd. Said & Ors., was a larger Bench of 5 judges. Therein the Full Bench preferred to assign a narrower meaning to 'judgment' holding that only such adjudications would amount to judgment as would have the effect of a decree or of an order mentioned in Section 104 read with Order 43 Rule I of the CPC. Begum Aftab Zamani's case (supra) was distinguished holding that therein the point arising for decision was mainly under the Court Fee Act. The learned Judges did not also approve of the view that the term judgment in Section 10(1) has to be interpreted by applying the tests laid down in various judgments given under the Letters Patent.
5.3University of Delhi's case (supra) case was followed by a Division Bench in The Public Trustee VS. Rajeshwar Tyagi & Ors. Air 1972 Delhi 302 and it was held that the order of the Single Judge holding that he had the territorial jurisdiction to entertain the suit was neither a decree nor an order appealable under the Civil Procedure Code and therefore no appeal was entertainable under Section 10(1).
5.4A little later we will notice the law laid down by the Supreme Court in the leading authority of Shah Babulal Khimji VS. Jayaben D. Kania, . We presently proceed to notice another Supreme Court decision in Jugal Kishore Paliwal VS. S.Sat Jit Singh & Anr., . An amendment of the Written Statement was sought at the time of framing of issues. It vitally effected the rights of the parties and worked some injustice to the plaintiff. It was allowed. An appeal preferred under Section 10(1) was dismissed by the Division Bench holding it not maintainable in view of the Full Bench decision in University of Delhi's case (supra). Their Lordships held that University of Delhi's case had ceased to be good law in view of the Supreme Court decision in Shah Babulal Khimji's case (supra) :- "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."
5.5In M/s Jawahar Engineering Co. & Ors. VS. M/s Javahar Engineers Pvt.Ltd. , the Single Judge had decided a preliminary issue in favour of the plaintiff holding that the High Court had jurisdiction to try the suit. The order was held not to be a judgment and hence not appealable. In view of law laid by Supreme Court in Shah Babulal Khimji's case (supra) as we will deal with in para 6 below, this decision of D.B. has ceased to be good law and must be held to have been impliedly overruled.
5.6In Swadeshi Polytax Ltd. VS. V. K. Goal & Ors. , the learned Single Judge had upheld an order of the Registrar directing issue of certified copies of proxies from summoned record of another suit. It was held that the order did not . decide any aspect of the suit or even an ancillary proceeding in the suit. There was no decision effecting the merits of the suit. No vital or valuable right of the appellant was effected. At worst there was a procedural irregularity. An appeal under Section 10(1) did not lie.
5.7Very recently a Division Bench of this Court had an occasion to review the available case law on the point in Abdul Hamid VS. Charanjit Mehra, 1995(IV) Ad Delhi 717 speaking for the Division Bench the learned Chief Justice has held, in the context of an appeal against an order permitting an amendment that the appeal would lie if it vitally effects rights of the parties and valuable right accrued to the plaintiff on date of suit was taken away.
5.8So was the view taken in Shanti Kumar .R. Chanji VS. The Home Insurance. Co. of New York, . It was held that "where an amendment takes away from the defendant the defense of immunity from any liability by reason of limitation, it is a judgment". The following test was laid down for determining when an order would amount to a judgment :- "IN finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability."
5.9It was submitted by Mr.PAS Rao by reference to para 20 of Shanti Kumar's case (supra) that even discretionary orders are liable to be interfered with in appeal. That is true. But that proposition does not provide answer to the question of maintainability of appeal. If an appeal is maintainable, in appropriate cases appellate Court may interfere with the exercise of discretion by the learned Judge passing the order impugned. But the reverse is not true. Merely because an appellate court can appropriate cases interfere with the exercise of discretion made in an impugned order, every order does not become appealable.
(6) We may now notice the taw as laid down in Shah Babulal Khimji VS. Jayaben D. Kania & Anr. .
6.1In Shah Babulal Khimji's case the term 'judgment' as used in Letters Patent of the Bombay High Court came-up for examination before their Lordships. The decision has settled by and large the controversy raging for about a century on the connotation of the term 'judgment'. It will be useful to examine the law laid down, the observations made and the tests and principles enunciated therein in details.
6.2Vide para 119 their Lordships have held that the tests laid down by Sir Arnold White C.J. (of Madras High Court) and Sir Couch C.J. (of Calcutta High Court) as modified by later decision of Calcutta High Court itself and dealt with by their Lordships should be borne in mind.
6.3Sir Couch CJ. speaking for the Division Bench in the case of Justice of the Peace for Calcutta (1872-8) Bengal Reports 433 observed thus :- "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."
6.4Analysing the above said observations their Lordships held that following tests were laid down for finding whether an order passed by the trial judge would be a judgment :- "(1)a decision which affects the merits of the question between the parties; (2) by determining some right or liability; (3) the order determining the right or liability may be final, preliminary or interlocutory, but the determination must be final or one which decides even a part of the controversy finally leaving other matters to be decided later."
6.5Vide para 83 their Lordships observed that the view taken by Sir Couch CJ. placed a very strict and narrow interpretation on the word "judgment" and became subject matter of similar criticism by several judges of that very High Court thereafter. Their Lordships reviewed the trend of judicial opinion in Calcutta High Court from 1919 to 1960 and then noticed (para 90) the test laid down by Sir Arnold White CJ. in Tulja Ram Rao's case 1912 Ilr 35 Madras 1. The observations made by the learned Chief Justice were analysed by their Lordships vide para 91 as laying down the following tests to determine what would be a 'judgment' :- "(1)It is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding; (2) If, irrespective live of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment; (3) Similarly, the effect of the order, if not complied with, is to terminate the proceedings, the said order would amount to a judgment; (4) Any order in an independent proceeding which is ancillary to the suit (not being a step towards judgment) but is designed to render the judgment effective can also be termed as judgment within the meaning of the Letters Patent. So far as this test is concerned, the learned Chief Justice had in mind orders passed by the trial Judge granting or refusing ad interim injunction or appointing or refusing to appoint a receiver. (5) An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings. (6) An adjudication based on a refusal to exercise discretion the effect of which is to dispose of the suit, so far as that particular adjudication is concerned, would certainly amount to a judgment within the meaning of the Letters Patent. 6.6 Vide para 93, their Lordships observed on the tests laid down by Sir White C.J. as under :- "We are inclined to agree generally with .these tests though we feel that some of the tests laid down are far too wide and may not be quite correct. The correct test seems to lie somewhere in between the tests laid down by the aforesaid jurists."
6.7Then their Lordships noticed the Supreme Court decisions in Asrumati Devi's case , Union of India VS. Mohindera Supply Company, , State of U.P. VS. Dr. Vijay Anand Maharaj , Shankar Lal Aggarwal's case , Radhey Shyam's case and Shanti Kumar R.. Canji's case and concluded (vide para 113) as under :- "THE concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word 'judgment' as used in clause 15 of the Letters Patent because the Letters Patent has advisedly not used the term 'order' or 'decree' anywhere. The intention, therefore, of the givers of the Letters Patent was that the word 'judgment' should receive a much wider and more liberal interpretation than the word 'judgment' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a Trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appel able under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense."
6.8Their Lordships have classified the judgments in following 4 categories :-
(I)a final judgment, amounting to a decree;
(II)a Preliminary judgment - (a) suit dismissed on a preliminary objection without going into the merits of the suit; (b) a preliminary objection to maintainability of the suit such as bar of jurisdiction res judicata, a manifest defect in the suit absence of notice under Section 80 Civil Procedure Code and the like decided against the defendant and not terminating the suit but the objection if valid would have entailed dismissal of the suit.
(III)intermediary or interlocutory judgment - (a) those covered by Order 43 Rule (1) CPC; (b) those not covered by Order 43 Rule 1 Cpc, but which possess the characteristics and trappings of finality in that order may adversely affect a valuable right of the party or decide an important aspect of the trial in ancillary proceedings.
6.9A final judgment, a preliminary judgment falling in either of the sub-category (a) or (b) and an intermediary or interlocutory judgment falling in sub- category (a), do not pose any problem and in the view of their Lordships they would clearly amount to 'judgment' and be appel able as such. However, they are the orders falling in category (iii)(b) which really pose a riddle. It will be useful to enter into a little detailed discussion in the light of the law laid down by their Lordships and find out in this category which orders will be appealable and which not.
6.10As to category (iii)(b) their Lordships have held that such orders must possess the characteristics and trappings of finality in that the orders may adversely affect a valuable right of the party or decide an important aspect of trial in the ancillary proceedings; the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.
6.11Vide para 114 their Lordships have observed that in the course of 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 or the other party but they would not be judgment and would not be appealable. Vide para 115 their Lordships have laid down the following tests to be applied for holding an interlocutory order to be a judgment and hence appealable:- ORDERS which decide matters) (which work of moment) (serious injustice) (to the party Or ) AND(concerned.) (affect vital and valuable ) (rights of the parties ) 6.12Intermediary or interlocutory judgment of category (iii)(b) not satisfying the test above said would have the following fate :- "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." (Para 114) 6.13Their Lordships have illustrated the above proposition by specifically giving (vide para 120), the following illustrations of interlocutory orders which may be treated as judgments :- "(1)An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant. (2) An order rejecting the plaint. (3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure. (4) An order rescinding leave of the trial judge granted by him under C1.12 of the Letters Patent. (5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive. (6) An order rejecting an application for a judgment on admission under 0.12 Rule 6. (7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure. (8) An order varying or amending a decree. (9) An order refusing leave to sue in forma pauperis. (10) An order granting review. (11) An order allowing withdrawal of the suit with liberty to file a fresh one. (12) An order holding that the defendants are not agriculturists within the meaning of the special law. (13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Procedure. (14) An order granting or refusing to stay execution of, the decree. (15) An order deciding payment of court- fees against the plaintiff."
6.14From paragraphs 113, 114 and 117 of the judgment of their Lordships, we can find out a few more illustrations of orders which would be appealable or not appealable:-
INTERMEDIARY or interlocutory Judgments Appealable (iii)An order Setting aside an ex-parte decree (pr.ll3) Intermediary or interlocutory orders - Not appealable (I)An order allowing an amendment in the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by the plaintiff 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 the plaintiff at the trial, (pr.ll7) (II)An order under Order 37 Civil Procedure Code allowing the defendant to defend the suit.
(III)An order refusing an adjournment; (pr.ll4) (IV)an order refusing to summon an additional witness or documents, (pr.ll4) (V)an order refusing to condone delay in filing documents after the first date of hearing, (pr.114) (VI)an order of costs on one of the parties for its default, (pr.ll4) (VII)an order exercising discretion in respect of procedural matter against one party or the other(pr.ll4) 6.15The illustration given by their Lordships are followed by a note of caution :- "IT is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well - nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a straitjacket."(para 122) (7) Though the word 'judgment' as Used in Section 10(1) of Delhi High Court Act cannot be equated with a 'judgment' amounting to a decree nor can it be confined to include only such orders as are made appealable under Section 104 read with Order 43 Rule I of the Cpc, yet, at the same time, every interlocutory order cannot be regarded as a 'judgment'. An order, though interlocutory, may amount to a judgment if it decides a stage in a suit or proceeding or affects vital and valuable rights of the parties and works serious injustice to the party affected. Orders deciding procedural matters or orders which do not affect the rights of the parties cannot be treated as judgments; grievance on that score is always capable of being corrected by the appellate Court in appeal against the final judgment. An order allowing or refusing leave to deliver interrogatories is merely a procedural step in a suit. It does not affect, much less vitally affect, the rights of the parties.
(8) We may now test the nature and effect of an order under Order Xi of the CPC. Does it conclude a suit or proceeding? Does it vitally affect the rights of parties?
8.1In Rajendra Kumari Bajpai VS. Ram Adhar Yadav & Ors., their Lordships refused to agree with the contention that Order Xi does not form part of the trial of suit but is a special procedure and held :-
"IT will appear that Order X relates to the procedure for examination of parties by the Court and Order Xi is a part of that procedure."
"ORDERXI is as much a part of the procedure as Order X relating to trial of suits in matters regards summoning of witnesses, documents etc. The application for interrogatories was one of the logical steps in aid of the prosecution of the petition."
8.2In Y.Venkateswara Rao VS. K.Nagamma & Am., Air 1972 Mysore 254, the question arising for decision was whether in a decision given by the Court refusing grant of leave to serve interrogatories it can be said that the Court had adjudicated some right or obligation of the parties in controversy. It was held :- "WHAT is being sought under Order Xi Rule 11 Civil P.C. is the leave to deliver interrogatories. When the court exercises its judicial discretion in granting or refusing the leave, it cannot be stated to be an adjudication of some right or obligation of the parties in controversy."
8.3Mysore High Court's view has been followed by Allahabad High Court in Maheshwari Oil Mill VS. M/s.Girjanath Durga Saran, . It was held that the Court exercising its judicial discretion in granting or refusing to grant leave to deliver interrogatories passes an order analogous to overruling or sustaining an objection to a question put to a witness. It is purely interlocutory order.
8.4We are, therefore, clearly of the opinion that an order passed by a Single Judge during the hearing of civil suit granting or refusing leave to deliver interrogatories does not decide any right of a party to the suit nor does it conclude any stage in the suit or proceedings. It does not amount to a 'judgment' within the meaning of Section 10(1) so as to make it appealable.
(9) So is the case with an order refusing or allowing leave to cross examine a deponent of an affidavit filed in the course of proceedings under Section 20 of the Arbitration Act, 1939. Such an order is analogous to an order permitting or refusing a question during cross examination of a witness. If a prayer for cross-examination has been unreasonably allowed or refused, as the case may be, no valuable right of any party is determined or adversely affected in as much as in an appeal preferred against the final order, the party shall have the liberty, nay the right, of raising that contention and the appellate court would hear and dispose of the same on its own merits.
(10) For the foregoing reasons both the appeals are held to be not maintainable and are liable to be. dismissed. They are dismissed accordingly.