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Manilal Chunilal Choksi Vs. Manilal Damodardas Mody - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 77 of 1924
Judge
Reported inAIR1925Bom159; (1925)27BOMLR99
AppellantManilal Chunilal Choksi
RespondentManilal Damodardas Mody
DispositionAppeal rejected
Excerpt:
letters patent, clause 15 - appeal-order amending title of plaint.;no appeal lies, under clause 15 of the letters patent of the bombay high court, from an order amending the title of a plaint by omitting the word 'summary' from the same, and transferring the case to the short cause list.;the order contemplated by the clause is an order which affects the merits of the questions at issue between the parties by determining some right or liability, and not one which merely regulates the procedure according to which a suit is to be tried. - .....kt., c.j.1. the plaintiff filed this suit on may 24, 1924. it was described in the plaint as a summary suit. the endorsement on the plaint stated that it was a summary suit and as such it appears, it was admitted. the cause of action arose more than six months before the plaint was filed and consequently the suit as a summary suit was barred under article 5 of the indian limitation act. when the defendants were served with the summons, defendant no. 2 took out a chamber summons against the plaintiff, asking for an order that the suit should be removed from the list of summary suits, or in the alternative that he might be granted liberty to defend the suit and file his written statement. strictly speaking the defendant could not be entitled to the first relief he asked for in this.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff filed this suit on May 24, 1924. It was described in the plaint as a summary suit. The endorsement on the plaint stated that it was a summary suit and as such it appears, it was admitted. The cause of action arose more than six months before the plaint was filed and consequently the suit as a summary suit was barred under Article 5 of the Indian Limitation Act. When the defendants were served with the summons, defendant No. 2 took out a Chamber summons against the plaintiff, asking for an order that the suit should be removed from the list of summary suits, or in the alternative that he might be granted liberty to defend the suit and file his written statement. Strictly speaking the defendant could not be entitled to the first relief he asked for in this summons, because as long as a suit is a summary suit he cannot appear until be has got leave to defend, and it could only be when the defendant had got leave to defend that he would be enabled to ask the Court to dismiss the suit as barrel by limitation. The plaintiff then took out a summons asking for an order deleting the word 'summary' from the title of the plaint and annexures and transferring the suit to the list either of long causes or short causes. The two summonses were heard together. The Judge ordered that the plaintiff and to delete the word 'summary' from his plaint ant within three days and that the suit should thereof from the list of summary suits and transferred be at liberty annexures be removed the list of contested short causes. The plaintiff was also ordered to pay all the costs of the suit up to the date incurred by the defendants.

2. The defendants have filed an appeal against that order.

3. The respondents have raised a preliminary objection that the appeal is not competent. It is not disputed that an appeal can only He under clause 15 of the Letters Patent, and the appellants must, therefore, show that the order appealed against is a judgment.

4. Treating the plaintiffs application as one for the amendment of the plaint, the defendants argued that if the plaint were amended it would have to be re-declared and the suit would be barred even as an ordinary suit on the date of the re-declaration That was a wrong argument. When a plaint has to be re-declared owing to leave to amend being granted, the amendment is treated as if it had originally stood in the plaint, and an amendment has been refused on the ground that it would cause injustice to the opposite party if the effect of allowing it would be to take away from him the defence of limitation. The Judge, however, held that the declaration of a plaint has reference to the paragraphs of the plaint, and the title could be amended by deleting the word 'summary' without there being any necessity to re-declare the plaint. He also pointed out that the only result of the amendment would tie to deprive the plaintiff of the advantages which would accrue to him from the suit being entered as a summary suit. It would not convert the suit into another suit of a different character.

5. The order under appeal, therefore, is an order regulating the procedure according to which the suit is to be tried. It does not in any way affect the merits of the questions at issue between the parties by determining some right or liability. As Mr. Mulla points out in his seventh edition of the Civil Procedure Code, p. 4046, all the High Courts are agreed that no appeal lies from such an order.


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