1. This is a special appeal from an order of our brother Nigam, rejecting the appellant's oral application made under Rule 6 of Chapter VIII of Rules of Court for a declaration that the case is a fit one for appeal. Our learned brother dictated the judgment in open Court in a second appeal. Subsequently, but before the judgment was transcribed and signed, the appellant made an oral application to our learned brother asking for a declaration that the case was a fit one for appeal. Our learned brother held that he had already delivered the judgment and was consequently functus officio and refused to give the declaration. The appellant files this appeal from the refusal.
2. The appeal is filed as a matter of right and not under a certificate from our learced brother declaring that his refusal to grant the declaration cm the ground given by him is a fit case for appeal. Under Rule 5 of Chap. VIII an appeal lies as a matter of right from the judgment or one Judge, barring certain judgments. The first question that arises is whether our learned brother's decision is a judgment within the meaning of this rule. We do not agree with the plea of Sri K. Section Varma that it is. Rule 6 expressly describes the order as an 'order' and not a 'judgment.' The last sentence of the rule is 'The Court shall thereupon record an order granting or refusing to grant such declaration.' Thus the decision of our learned brother is an order and not a judgment according to Rule 6 itself and, therefore, is not appealable without special leave.
3. The word 'judgment' is not defined in the Rules of Court. The definition of 'judgment' contained in Section 2(9), C. P. C., was pressed upon us, but we are not sure that it applies in the present case. It defines the word as used in the Civil Procedure Code and not elsewhere, for example in the Rules of Court. Even if it does apply in the present case, we do not think that the order in question comes within its scope. Concededly it does not contain a statement of the grounds of a decree but does it contain the grounds of an order? The word 'order' itself is denned in Section 2(14) to mean the formal expression of any decision of a civil court not amounting to a decree. Our learned brother's decision is by no means a formal expression of any decision.
The word 'order' as used in Section 2(9) and (14) means what is popularly known as a 'formal order' as distinguished from a 'decree.' 'Judgment' itself Is distinguished from a 'decree' by Section 2(9) and in the same way it must be distinguished from an 'order.' There cannot be a judgment unless there exists either a decree or an order; this confirms that 'order' means a 'formal order.' Just as a decree itself cannot amount to a judgment so also an order itself cannot amount to a judgment. In the present case we have only a decision which cannot amount to both an order and a judgment within the meaning of Section 2(9) and (14), C. P. C.
4. If the definition contained in Section 2(9) is disregarded, there remains the ordinary meaning to be applied to the word. Its ordinary meaning is a decision involving an adjudication of rights. The definition of 'judgment' generally accepted is that given by Couch C. J. in Justices of the Peace v. Oriental Gas Co., 8 Beng 'LR 433 at p. 452, e. g. 'a decision which affects the merits of the question between the parties by determining some right or liability.' In Ebrahirn v. Fuckrunnissa Begum, ILR 4 Cal 531 at p. 534 ''judgment' was interpreted by Garth C. J. to mean a judgment or decree which decides the case one way or the other in its entirety.
Rule 5 of Chapter VIII of Rules of Court reproduces Clause 10 of the Letters Patent of the Allahabad High Court, which is in the same language as Clause 15 of the Letters Patent of the Madras and Calcutta High Courts. The word 'judgment' used in the Letters Patent has been interpreted by this Court to mean a decision which disposes of the suit or the appeal Before the single judge. The view that this Court has taken is that an order which is not appealable under Section 104(1) and Order 43, R, 1, C, P. C., is not appealable under Clause 10 of the Letters Patent; see Mulla's C. P. C. 12th edition, 1465.
By refusing to declare the case as a fit one for appeal our learned brother did not adjudicate any rights of the parties. Sri. K. Section Varma contended that by the impugned order the appellant's right to a declaration of fitness for appeal has been adjudicated upon. If this were a sound argument every decision would amount to a judgment because every decision must decide something for or against a party.
The alleged right of a party to a declaration about the case being fit for appeal is not defined anywhere and has not been conferred by any law. It is, therefore, not correct to say that a party has a right to such a declaration and a decision granting or refusing such a declaration is no adjudication of any right. The appellant was not entitled as a matter of right to the declaration sought by him and by refusing it our learned brother did not adjudicate upon any right of his.
5. Not a single authority laying down that an order granting or refusing special leave for appeal or a declaration or certificate of fitness for appeal is appealable was cited before us. Rules of Court do not contemplate that a single Judge's refusal to grant the declaration should be appealable. Even if we grant the declaration that was refused by our learned brother, it would not cntit'e the appellant to file an appeal from the judgment of our learned brother in the second appeal. An appeal from that judgment would lie only if there were a declaration granted by him about the fitness for appeal. The jurisdiction to grant this certificate is personal to him and cannot be exercised by any one else even by a large Bench. No declaration granted by us about the fitness for appeal would be of any use to the appellant; if the allowing of this appeal would be utterly useless, it only confirms that there is no right of appeal. When a legislature grants a right of appeal but not absolutely, it proceeds in either of the two ways, (1) by making the right conditional upon special leave by the court of appeal and (2) by making it conditional upon a declaration or certificate of fitness for appeal by the court delivering the judgment sought to be appealed from; this well-known distinction would be rendered meaningless if in the case of the right being conditional upon a declaration or certificate of fitness for appeal the refusal to grant a declaration Or certificate were appealable and the appellate court had the jurisdiction to grant the declaration or certificate. Further it would be a waste of energy and time to give jurisdiction to a superior court to Hear an appeal from the refusal to grant a declaration or certificate; if the matter is allowed to be taken to a superior court it may as well deal with the merits of the judgment sought to be appealed from. Sri K. Section Varma seems to have realised that a declaration (of fitness for appeal) from a court other than that of the single Judge would be useless and suggested that the appellate court instead of granting a declaration itself should remand the case to the single Judge for granting it.
The jurisdiction of an appellate court has never been thought to consist only of remanding the case. In certain circumstances an appellate court is obliged to remand the case to the trial court, but the obligation to remand in every case is inconsistent with the existence of appellate jurisdiction. An appellate court must have the power to pass the same order that ought to have been passed by the trial court; this is the distinction between appellate jurisdiction and jurisdiction to issue certiorari.
6. The view that we take is amply supported by authorities. In Kay v. Briggs, (1889) 22 QBD 343, Lord Esher, M. R., referring to an appeal from a Divisional Court's refusal to grant special leave to appeal under Section 45 of the Judicature Act, 1873, observed at page 344:
'If this Court could overrule the discretion given by that section to Divisional Courts the practical effect would be to allow an appeal here in every case, because the facts of each case would be 'brought before us in order to enable us to decide whether or not we ought to overrule that discretion. I think that the real meaning of Section 45 is to confine the power to give leave to appeal absolutely to the Divisional Court. I am of opinion, therefore, that we have no jurisdiction to interfere with the exercise of their discretion.'
In Lane v. Esdaile, (1891) AC 210, the House of Lords held that no appeal lies to the House from a refusal of a court of appeal to grant special leave to appeal from its judgment because such a refusal is not an order or judgment of the Court of appeal within the meaning of Section 3 of the Appellate Jurisdiction Act, 1876. Lord HerscheJl observed at p. 215 that entertaining an appeal from a refusal would mean that every case might be brought up to the House upon the question whether an appeal should be allowed or not. In Ex parte Stevenson, (1892) 1 QB 609, Lord Esher, M. R., said at page 611 that 'wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal.' Fry, L. J., concurring, pointed out that the object of preventing frivolous and needless appeal behind the provision that no appeal lies without leave to appeal, would be frustrated if the refusal of leave to appeal itself were appealable.
In Ramanayya v. Kotayya, ILR 52 Mad 952: (AIR 1930 Mad 75), Waller and Anantakrishna Ayyar, JJ., followed the above decisions and held that no appeal lies from a refusal by a single Judge of leave to appeal from his judgment in a second appeal. The learned Judges were also very doubtful that a refusal of leave is a judgment within the meaning of Clause 15. of the Letters Patent of the Madras High Court. In Harendrachandra Ghosh v. Kailashchandra Ghosh : AIR1931Cal571 Rankin C. J. and Mukerji J. followed Ramanayya's case and refused an appeal from a single Judge's refusal of leave to appeal from his judgment in a second appeal.
7. We, therefore, reject this memorandum ofappeal.