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Fertilisers and Chemicals Travancore Ltd. Vs. Rajkumar Lines Limited - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number O.C.J. Appeal Nos. 143 and 144 of 1969 and Suit Nos. 11 of 1966 and 1 of 1967
Judge
Reported in(1970)72BOMLR271; 1970MhLJ503
AppellantFertilisers and Chemicals Travancore Ltd.
RespondentRajkumar Lines Limited
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), order ix, order v, rule 1, order iii, rule 1, order xvii, rule 2, order xliii, rule 1(c); section 151-letters patent, clause 15-_appearance by pleader in court, what it means--whether appeal lies under clause 15, letters patent against dismissal of notice of motion to restore suit dismissed under order ix, rule 8 or section 151 of code.;where parties to a suit are not personally present and are represented by pleaders, appearance by the pleader within the meaning of order ix of the civil procedure code, 1908, does not mean mere presence in court. it means appearance by a pleader 'duly instructed and able to answer all material questions relating to the suit' or by a pleader 'accompanied by some person able to answer all such questions' as stated in.....vaidya, j.1. [his lordship after stating the facts, proceeded]. in view of these contentions before us, the first question that arises in these two appeals is whether the orders passed by mr. justice mody in the two suits on september 10, 1969 were orders under order ix, rule 8 or orders passed in the exercise of inherent jurisdiction under section 151 of the civil procedure code. a perusal of the orders which have been set out above will show that these orders must have been passed under order ix, rule 8. in the order passed in suit no. 11 of 1966 mr. justice mody has in terms found that the counsel who appeared for the plaintiffs was unable to answer the questions put to him and even the names of the witnesses were not known to him and the plaintiffs were not even contacted to ascertain.....
Judgment:

Vaidya, J.

1. [His Lordship after stating the facts, proceeded]. In view of these contentions before us, the first question that arises in these two appeals is whether the orders passed by Mr. Justice Mody in the two suits on September 10, 1969 were orders under Order IX, Rule 8 or orders passed in the exercise of inherent jurisdiction under Section 151 of the Civil Procedure Code. A perusal of the orders which have been set out above will show that these orders must have been passed under Order IX, Rule 8. In the order passed in suit No. 11 of 1966 Mr. Justice Mody has in terms found that the counsel who appeared for the plaintiffs was unable to answer the questions put to him and even the names of the witnesses were not known to him and the plaintiffs were not even contacted to ascertain as to what evidence was to be led. In suit No, 1 of 1967, whose dismissal followed soon thereafter, a similar note is made in the minutes that the counsel stated that there were 21 plaintiffs and that his instructing attorneys were unable to contact any of them. In the affidavits filed by Jagdish it is averred that Mr. Kotwal was engaged only for the purpose of adjournment or for consenting- to the adjournment asked for by the other parties to the suits. We are told that Mr. Kotwal is a junior counsel. He is appearing before us and he has made a statement that he was engaged only for the purpose of adjournment and he had no instructions whatsoever from the attorneys with regard to the merits of the suits on September 10, 1969. Jagdish has further stated in his affidavit that the attorney who appeared for the plaintiffs was his father Mr. Gordhandas who was ill and was at Surat. Jagdish himself was only an articled clerk. It is not suggested by the defendants that Mr. Gordhandas was present in Bombay between September 6, 1969 and September 10, 1969. In these circumstances, we are emphatically of the opinion that there was no effective appearance whatsoever on behalf of the plaintiffs before Mr. Justice Mody on September 10, 1969. Order IX, Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim or part thereof. It is common ground that on September 10, 1969, the plaintiffs themselves or their agents were not present in Court. The plaintiffs' attorney was not present in Court. They were only represented by a junior counsel whose instructions were only to ask for adjournment or to consent to adjournment asked for by the other side. The counsel was unable to answer any questions asked by the Court with regard to the conduct of the suit. In these circumstances, it is impossible to hold that the plaintiffs in either of the suits had 'appeared' in Court within the meaning of that expression as used in the Cavil Procedure Code.

2. It is, however, contended by Mr. Ajit Mehta that as the plaintiffs were represented by counsel who claimed to be instructed by the plaintiffs' attorneys, the dismissal of the suit in the facts and circumstances of the case could never be within the ambit of Rule 8 of Order IX. According to him Order III, Rule 1 of the First Schedule to the Civil Procedure Code permits any appearance required or authorised by law to be made

(1) by the party in person, or

(2) by his recognised agent, or

(3) by a pleader appearing, applying or acting, as the case may be, on his behalf.

The attorneys for the plaintiffs had filed a warrant of authority under Rule 103 of the Original Side Rules and Forms of this Court and they had, therefore, authority to act on the plaintiffs' behalf. It was stated by Mr. Kotwal who appeared for the plaintiffs that he was instructed by the attorneys. Hence, appearance on behalf of the plaintiffs by Mr. Kotwal was appearance by the plaintiffs within the meaning of Order III, Rule 1 of the Civil Procedure Code as well as appearance for all purposes in Court. He submitted that so far as the defendants were concerned, Order V, Rule 1 made a specific rule when defendant was represented by a pleader that the pleader should be duly instructed and able to answer all material questions relating to the suit, but there wag no such rule regarding the pleader who appeared for the plaintiffs, and hence, as Mr. Kotwal appeared as counsel for the plaintiffs, the plaintiffs had in law appeared in Court on September 10, 1969 through counsel. He also relied on three other circumstances relating to the orders passed in the said two suits. It is not stated in the minutes or in the order that at any stage, the counsel desired to withdraw from the suit for want of instructions; secondly, he relied on the fact that the orders themselves do not say that the suit was dismissed for default of appearance or non-appearance; and thirdly, the reason given in the order in suit No. 11 of 1966 shows that the suit was dismissed because of total lack of preparation and the order in suit No. 1 of 1967 shows that the suit was dismissed as the plaintiffs were not able to go on with the hearing of the suit and hence in substance, both the suits were dismissed for want of prosecution and not for non-appearance as required by Order IX, Rule 8. He relied in support of his submissions on a decision of this Court in Ramchandra Pandurang Nath v. Madhav Purushottam Naik I.L.R.(1891) Bom. 23, and a decision of the Madras High Court in In re Valia Munnadiar A.I.R.[1938] Mad. 495 and contended that these decisions recognised the inherent power in Court to dismiss the suit for default of any kind and hence Mr. Justice Mody had exercised the inherent powers under Section 151 of the Civil Procedure Code in passing the impugned orders.

3. However, we find nothing in those two decisions to support the contentions made by Mr. Mehta. In Ramchandra Pandurang Naik v. Madhav Purushottam Naik on the day fixed for hearing of an appeal in the District Court, the appellant appeared by a duly appointed pleader. The pleader applied to the Court for an adjournment on the ground that he had no time to fully prepare himself in the case. The District judge refused to grant any adjournment and dismissed the appeal for default and this Court held that the order of dismissal was bad because the mere fact that the appellant's pleader was not prepared to proceed with the case would not enable the Court to deal with the case as if there was no appearance at all for the appellant and to dismiss the appeal for default. That case is distinguishable firstly because the position of counsel in the trial of a suit is different from the position of counsel in an appellate Court who represents the appellant. Even there, it was held that if the pleader had said that he had received no instructions, the Court could, no doubt, have held that there was no proper appearance. But that was not the case there because the pleader had asked for an adjournment for certain reasons and the only order that the Court could have passed in the circumstances was either to grant the adjournment or refuse the adjournment and go on with the hearing of the matter. That case cannot help us in interpreting Order IX, Rule 8. Similarly, the decision of the Madras High Court in In re Valia Munnadiar is not of much assistance to Mr. Mehta because all that that case lays down is that the Court has inherent powers to dismiss an application in execution of a decree, even apart from Order IX of the Civil Procedure Code. Even assuming for a moment that the orders were passed by Mr. Justice Mody only under Section 151, the Court has also inherent power under Section 151 of the Civil Procedure Code to restore a suit previously dismissed by it if it thinks that such restoration is necessary in the ends of justice. (See Subash Chand v. Smt. Sarjoo Dei : AIR1960All569 , and Khatizabai v. Akhtara Begam A.I.R. [1950] Nag. 194 in which Mudholkar J., as he then was, held that though the provisions of Order IX, Rule 9 were not applicable to the case before him, the suit could be restored to file under Section 151).

4. Apart from that, we find that it is settled law that where parties are not personally present and are represented by pleaders, appearance by a pleader within the meaning of Order IX does not mean mere presence in Court. It means appearance by a pleader 'duly instructed and able to answer all material questions relating to the suit' or by a pleader 'accompanied by some person able to answer all such questions,' as stated in Order V, Rule 1. It is true that Order V, Rule 1(2)(a), (I) and (c) deal with appearance of defendants, but there is weighty authority in support of the proposition that the same rule would apply even with regard to the appearance by the plaintiffs. The words 'appear' and 'appearance' are used in several places in the Civil Procedure Code including Order Ill, Rule 1, Order V, Rule 1, Order IX, Rules 1, 6, 8, 9 and 13 and Order XVII, Rule 2 and considering the scheme of these provisions, it is, in our opinion, clear that there cannot be any difference between the meaning of appearance by a pleader on behalf of the plaintiff and appearance by pleader on behalf of the defendant. The effective appearance by the pleader is possible only when he is duly instructed to answer all material questions or is accompanied by a person who is able to answer all material questions, whether the pleader is appearing for the plaintiffs or for the defendants. On principle, we find no reason whatsoever to make a distinction between the appearance of the pleader on behalf of the plaintiff and the appearance by a pleader on behalf of the defendants. That is why we find no such distinction being made in any of the cases decided by any Court.

5. On the contrary in Soonderlal v. Goorprasad I.L.R. (1898) Bom. 414, a Division Bench of this Court held that where a party to a suit is absent and an application for adjournment is made on his behalf by a pleader who has no other instructions than to apply for adjournment and whose functions are at an end when an adjournment is refused, the party was considered not to have appeared within the meaning of Section 102 of the Civil Procedure Code of 1882 which was the same as Order IX, Rule 8 of the present Civil Procedure Code. That was a case where there was a suit and a counter suit in the Presidency Small Causes Court at Bombay. On the day on which the suit and the cross suit between the same parties were on the board, the counsel who was instructed for the defendants in the first suit and for the plaintiffs in the second was unable to attend and another counsel held his brief and appeared on his behalf and applied for two months' adjournment of both suits. The counsel who appeared was accompanied by the Munim of the client, but he was unable to state what was the defence, if any, to the claim of the plaintiff in the first suit. The adjournment was refused and then he withdrew from the case. Both the suits were then and there disposed of, the claim of the plaintiff in the first suit being decreed, the second suit being dismissed for non-appearance. The Court, regarding the decrees as ex parte decrees, granted a rule for new trial, which was made absolute. The Division Bench consisting of Mr. Justice Strachey and Mr. Justice Fulton confirmed the order. Mr. Justice Fulton in his concurrent judgment observed as follows (p. 428) :

Here Mr. Dadysett, though instructed to ask for an adjournment, was not instructed to appear at the hearing; and the recognised agent, though present in Court, was, it appeals, un-willing to carry on the case. In these circumstances it seems to me that there was no appearance at the hearing of the defendants in Suit No. 18201 or by the plaintiffs in Suit No. 14928.

6. In Bilasirai v. Cursondas : (1919)21BOMLR952 , which was a case from the Original Side of this Court, on the suit being called on for hearing, counsel for the plaintiff applied for adjournment on the ground that the plaintiff had not appeared. 'Counsel could give no reason for plaintiff's absence and suggested that he might have succumbed to the prevailing epidemic. The adjournment was refused. Mr. Justice Pratt, who was hearing the suit, held relying on a decision of the Calcutta High Court in Hinga Bibee v. Munna Bibee I.L.R. (1903) Cal. 150, that 'Counsel asking for an adjournment is not an appearance' and the counsel admitted before him that he did not appear in the suit. Mr. Justice Pratt dismissed the suit under Order IX, Rule 8. An application was made for an order to restore the suit on board for re-hearing on the ground that the plaintiff was in attendance in Court, but not expecting the suit to be called on so soon, he went to fetch a witness and returned after a quarter of an hour after the suit was disposed of. Mr. Justice Pratt held that this was not sufficient cause relying on a decision of this Court in Manilal Dhunji v. Gulam Husein Vazeer I.L.R. (1888) Bom. 12 The plaintiff appealed against that order. In appeal which was heard by Sir Norman Macleod, C.J. and Heaton, J,, the order passed by Mr. Justice Pratt was set aside under Order IX, Rule 9. It is true that in that case the contention that Order IX, Rule 8 did not apply was not canvassed before the Court.

9. A Full Bench of the Calcutta High Court consisting of six Judges considered the meaning of the word 'appearance' in Satish Chandra Mukerjee v. Ahara Prasad Mukerjee I.L.R. (1907) Cal. 403, and held that an application by a counsel or pleader who is instructed only to apply for an adjournment which is refused is not an appearance within the meaning of the Code of Civil Procedure. In his judgment referring the case to the Full Bench, Mr. Justice Mookerjee reviewed the entire range of cases of different High Courts and agreed with the decision of this Court in Bhimacharya, Venkatacharya v. Fukurappa Anandappa (1867) 4 B.H.R.C. 206 and observed (p. 412) :.In the first of these cases, which was that of an ex-parte decree against a defendant, the decision was based on the ground that, under the Code, the summons issued to the defendant calls upon him to appear and answer the claim in person or by a pleader duly instructed and able to answer all material questions relating to the suit; where, therefore, there is a pleader physically present, who is not in a position to conduct the case, there is no representation of the defendant so as to give to the suit the character of a defended action. This reasoning appears to me to be sound, but it is not necessary to base it on the terms of the summons issued to a defendant under the provisions of the Code. The principle applies quite as much to a plaintiff as to a defendant, and when either party to a litigation is represented by a pleader, it is upon the assumption that the pleader is duly instructed and able to answer all material questions relating to the suit. If, therefore, the mere physical appearance of the pleader was treated as appearance within the meaning of the Code, the policy of the law and the course of justice would both be defeated.

With respect, we entirely agree with the view expressed by Mr. Justice Mookerjee which appears to have been approved by a Full Bench decision of this Court in Shidramappa Irappa v. Basalingappa Kushappa : (1943)45BOMLR697 where at page 704 it is observed by Divatia J., speaking for the Court, after quoting the above principle enunciated by Mr. Justice Mookerjee:.That view was accepted by the full bench. It would apply not only to a pleader who has been engaged only for the purpose of asking an adjournment but also to the pleader who has been engaged from the beginning' but who has not received instructions at any particular stage. In the latter case it has been held that when the pleader withdraws from the case on the ground that he had no instructions, the disposal of the suit is under Order XVII, Rule 2, and not under Order XVII, Rule 8.

Although the Full Bench was dealing with a case under Order XVII, Rule 2, in our judgment, the principles will apply even to a case falling under Order IX, Rule 8 because Order XVII, Rule 2 itself provides that where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

10. In Arunachala Goundan v. Katha Goundan A.I.R.[1924] Mad. 842 a single Judge of the Madras High Court considered the several authorities on the point and held that although Order V, Rule 1, Sub-clause (2) refers in terms only to a defendant, the game rule applies also to the plaintiff because if the pleader who appeared in Court said he had no instructions, he should be held not to have appeared, observing (p. 843):.This provision no doubt refers in terras to a defendant, but in principle there seems to be no distinction for this purpose between a defendant and a plaintiff, and I am quite clear that the same rule is to be applied in regard to both. When a pleader appears and says he has no instructions, I take it that he intends to inform the Court that he has no instructions to conduct the case either wholly or partially; in other words, he tells the Court that, though he has filed an appearance, he does not propose to appear for his client. It seems to me to be a contradiction in terms to hold that a person who says he does not appear, does, in fact, appear. It has been argued that it is necessary for a pleader to say in such circumstances that he severs his connection with the case, or that he withdraws his vakalat. I do not think any set form of words is necessary to convey to the Court the information that he has ceased to appear and that he, in fact, does not appear for his client. There is no magic in the words 'I have ceased my connection with the case.' In my opinion the mere attendance of a pleader who, for want of instructions, is unable to answer all material questions relating to the suit is not an appearance on behalf of his client. Another case may arise where the pleader appears and says that he applies for an adjournment and on the adjournment being refused, informs the Court that he has no instructions. Here again, I am perfectly clear that there is no appearance on behalf of the party.

11. We, therefore, reject the contention of Mr. Mehta that merely because it is not stated in the minutes of the orders passed by Mr. Justice Mody that Mr. Kotwal wanted to withdraw for want of instructions after the adjournment was refused or that the suits were being dismissed for default of preparation or non-prosecution or non-appearance, it can be held that the orders passed by Mr. Justice Mody were not orders passed under Order IX, Rule 8. Having carefully considered all that happened before the Court on September 10, 1969 and the fact found by the learned Judge that the plaintiffs in the two suits were not contacted by the attorneys, we must hold that the orders of dismissal passed by Mr. Justice Mody were orders under Order IX, Rule 8.

12. In view of our finding on the first question, it is plain that the Notices of Motion taken out by the plaintiffs in the two suits were applications under Order IX, Rule 9 and the orders passed by Mr. Justice Kantawala refusing to set aside the order of dismissal and restore the suits are orders against which appeals lie if not under Order XLIII, Rule l(c) at least under Clause 15 of the Letters Patent. Under Rule 52 of the Admiralty Rules of the Original Side of this Court, the admiralty suits are regulated by the rules and practice of the Court in suits brought in it in exercise of its ordinary original civil jurisdiction except in those matters which are specifically provided for under the admiralty rules. However, even assuming that Mr. Justice Mody had dismissed the suits in exercise of inherent jurisdiction under Section 151 of the Civil Procedure Code, we are of the view that the contention of Mr. Mehta, that merely because the Notices of Motion also must, therefore, be only under Section 151 the orders of dismissal of the said Notices of Motion passed by Mr. Justice Kantawala do not amount to judgments within the meaning of Clause 15 of the Letters Patent of this Court, is without any merit.

13. The word 'judgment' in Clause 15 of the Letters Patent has been the subject-matter of interpretation in a large number of cases. But a case which is nearest to the facts of the present case is to be found in Mathura Sundari Dasi v. Haran Chandra Saha I.L.R.(1915) Cal. 857, where Sanderson C.J., Woodroffe and Mookerjee JJ, held that an appeal lies to the High Court in its appellate jurisdiction from an order made under Order IX, Rule 9 of the Civil Procedure Code by a single Judge sitting on the Original Side of the High Court rejecting an application for an order to set aside a dismissal of a suit both under the Civil Procedure Code and under Clause 15 of the Letters Patent. Sanderson, C.J. observed (p. 865) :.But when the application to set aside that dismissal is made, in my opinion, the Judge has a discretion, and he must exercise his judgment on the materials before him. The question on which he has then to exercise his judgment and his judicial discretion may, as in this case be a matter of great importance. It is no less than whether the plaintiff under the circumstances of the case shall be allowed to prosecute his suit or for all time be debarred from trying to enforce his claims. Clause 15 obviously refers to 'judgments,' which in common parlance may be called orders. In my opinion, the decision so arrived at on such a question as above stated would be a 'judgment' within the meaning of the word 'judgment' in the Letters Patent... It seems to me strange that the plaintiff should be subjected to Order IX, rule 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 re-instatement has been refused, gives him aright 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.

Dealing with this question, Woodroffe J. observed (p. 870) : .Whether or not as a question of jurisdiction an appeal lies under clause IS 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 prima 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 ground for supposing that that case is of a class which this Court considers appealable under its Letters Patent.

Dealing with the same question, Mr. Justice Mookerjee observed at page 875 after referring to the classical definition of 'judgment' formulated by Couch C. J. in Justices of the Peace for Calcutta v. The Oriental Gas Co. (1872) 8 Beng. L.R. 433;.The order under appeal does affect the merits of the question in controversy between the parties by the determination of a right or liability. No doubt, it has been argued that the right or liability of the parties was determined by the dismissal of the suit and the position was not affected by the subsequent dismissal of the application to revive the suit. But this clearly overlooks the fundamental point that the primary order of dismissal of the suit was liable to be revoked, as it was subject to a possible order of restoration under rule 9. The effect of the subsequent order is accordingly to give a character of finality to the primary order of dismissal, by a determination that the applicant had failed to establish grounds in support of his alleged right to an order under rule 9 of Order IX. Such determination is, in my opinion, a 'judgement' within the meaning of clause 15 of the Letters Patent.

With respect, we entirely agree with the view expressed by Mr. Justice Mookerjee.

14. Mr. Mehta, however, contended that this view is contrary to the view of the Full Bench of this Court in Elphinstone etc. Mills v. Sondfoi Sons : AIR1962Bom241 . In that case the Full Bench dealt with the question as to whether an order setting aside a decree under Order IX, Rule 13 of the Civil Procedure Code was a 'judgment' within the meaning of Clause 15 of the Letters Patent and held that such an order was not a judgment. The Full Bench, however, adopted the definition of 'judgment' given by Chief Justice Couch which has been always followed in a large number of cases of this Court. The Full Bench has considered the line of decisions of this Court and concluded that the definition given by Chief Justice Couch has always been followed by this Court.

15. The question, therefore, would be whether the orders against which the present appeals are filed amount to 'judgment' as defined by Couch C.J. and as held by Mookerjee J. in the above Calcutta case in Mathura Sundari Dasi v. Haran Chandra Saha. We are of the opinion that the dismissal of the Notices of Motion does affect the merits of the questions between the parties by determining the right of the plaintiffs under Order IX, Rule 9 or under Section 151 of the Civil Procedure Code to have the suits restored if there was sufficient cause for the plaintiffs' non-appearance on the date of hearing.

16. The entire range of authorities was considered recently by a Division Bench to which I was a party. In Syed Fazal v. Madanlal Chanderbhan (1968) O.C.J. Appeal No. 102 of 1967, decided by Kotwal C.J. and Vaidya J., on October 17, 1968 (Unrep.), my Lord the Chief Justice referred to the three interpretations put on the word 'judgment' in Clause 15 of the Letters Patent by the Calcutta High Court, the Madras High Court and the Rangoon High Court as well as the decision of the Supreme Court in Asrumati Deli v. Kumar Bupendra Deb Baikot : [1953]4SCR1159 and held that an. order dismissing the Notice of Motion refusing to grant an interim injunction to hand over the goods in question to the applicants on the ground that the suit was a proper remedy for the applicants, was not a judgment even applying all the three tests laid down by the Calcutta High Court, the Madras High Court and the Rangoon High Court. The real test as laid down by Couch C.J. is whether the order finally determines, so far as the Court which makes the order is concerned, the suit. Applying that test to the facts of the present case, it is clear that the dismissal of the Notices of Motion by Mr. Justice Kantawala finally determined the right of the plaintiffs to get the suits revived by satisfying the Court that there was sufficient cause for their non-appearance.

17. The Madras view expressed in the judgment of White C.J. in Tuljaram Bow v. Alagappa Chettiar I.L.R. (1910) Mad. 1 is as follows (p. 7):

The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or 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.

Even applying this test to the facts of the present case, we find that the orders of dismissal put an end to all the rights of the plaintiffs in respect of the suits and proceedings for restoration and hence must be held to be judgments.

18. The same result would follow even if the Rangoon view is adopted in the facts of the present case, because in In re Dayabhai Jiwandas v. A. M. Murugappa Chettiar I.L.R. (1935) Rang. 457, it was held that the term 'judgment' means and is a decree in a suit by which the rights of the parties at issue in the suit are determined. In other words, 'judgment' is not what it is defined to be in Section 2(9) of the Civil Procedure Code as being the statement given by the Judge of the ground of a decree or order but is a judgment 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. Even if we apply this test, it is clear that the orders of dismissal passed by Mr. Justice Kantawala finally and definitely disposed of all the rights of the plaintiffs in the suit including the right to claim restoration of the suit on the ground that there was sufficient cause for the non-appearance on September 10, 1969.

19. The decision of our Court in The Elphinstone Spg. & Wvg. Mills Co. Ltd. v. 'Messrs. Sondhi Sons (Private) Ltd., dealt with an order which did not finally dispose of all the rights of the parties in the suit. Mr. Mehta cannot, therefore, rely on that decision in support of his contention that that decision is attracted even when a Notice of Motion for restoration of a suit is dismissed. We must, therefore, conclude that whether the orders passed by Mr. Justice Mody on September 10, 1969 are considered as orders under Order IX, Rule 8 or as orders under Section 151, appeals lie against the orders of dismissal of the Notices of Motion to restore the suit under Clause 15 of the Letters Patent.

20. On the question as to whether an appeal is maintainable under Order XLIII, Rule 1 against an order of a single Judge sitting on the original side, this Court has taken the view, differing from the aforesaid Calcutta decision in Mathura Sundari Diasi v. Haran Chandra Saha, that no appeal lies under Order XLIII, Rule 1 from an order passed by a single Judge exercising original jurisdiction of this Court but appeal can lie only under Clause 15 of the Letters Patent if the order amounts to judgment. 'We are bound by this view of our High Court as expressed in the latest case on the point in J. K. Chemicals v. Kreba & Co. (1961) 68 Bom. L.R. 209, though we find much substance in the Calcutta view on the matter. Hence we are of the opinion that the present appeals filed by the plaintiffs are maintainable under Clause 15 of the Letters Patent, whether the orders passed by Mr. Justice Kantawala are considered as orders under Order IX, Rule 9 or under Section 151 of the Civil Procedure Code.

21. [The rest of the judgment is not material to this report.]


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