1. On the 27th of October 1919 Sadiq Ali filed three Second appeals in this Court making Abdul Baqi Elian and Anwar Ali respondents. Abdul Baqi Khan died on the 30th of June 1920--when the Court re-opened on January 3rd, 1921 Sadiq Ali had that day, and that day only, upon which to take steps to get the heirs of Abdul Baqi Khan put on the record. Nothing was done on that day and thereupon the appeal automatically abated. On January 4th, 1921, an application was made that the Court should set aside, the abatement. That matter was heard by Mr. Jutice Tudball, who subsequently declined to set aside the order; and the parties come up herein appeal.
2. The first point which has been taken up by Mr. Iqbal Ahmad is that no appeal lies from the decision of Mr. Justice Tudball, and we propose to consider this matter first, because, if Mr. Iqbal Ahmad is right we cannot enquire into the merits of the case and see if Sadiq Ali in his application to Mr. Justice Tudball alleged and proved that he was prevented by any sufficient cause from continuing his suit.
3. Whether an appeal lies from the decision of Mr. Justice Tudball must depend upon the proper construction of Section 10 of the letters Patent, and the word upon which the whole matter hinges is the word 'judgment.' The material passage of Section 10 is as follows: 'An appeal shall lie to the said High Court from the judgment of one Judge of the said High Court.' Now ought judgment in that passage to be given the very narrow interpretation of a decision obtained in an action, or ought: it to include those matters of judicial decision which are commonly spoken of as orders? This question has arisen in other cases and, as far back as 1895, this Court thought that the right construction of Section 10 of the letters Patent was that the word judgment included all those types of decision which are to be found in Section 10 of the Judicature Act of 1875. It may just be well to state what they are. Section 12 of the Judicature Act was providing for appeals to the Court of Appeals and separating them into final and interlocutory appeals and it defined those matters as 'orders,' 'decrees' or 'judgments.' If we are prepared to follow Mr. Justice Burkitt in his construction of Section 10, it would follow that this appeal to us is entertainable by us. Mr. Justice Burkitt in the case of Wall v. Heward 27 A. 438 at p. 442 : A.W.N. (1895) (sic) : Ind. Dec. (N.S.) 603 observed: 'In construing the word 'judgment' in Section 10 of our Letters Patent which were prepared in England end us the phraseology of the English Courts, it is impossible to give to it the restricted meaning of the word 'judgment' as defined in the Code of Civil Procedure. As used in England, it is wide enough to embrace the definitions of decree, judgment and order in that Code.' The learned Judge then points out that in Section 10 of the-letters Patent the use of the word 'sentence' or 'order' in the exception as to criminal matters is significant, and by that he no doubt intends to convey that in his opinion the word 'judgment' will have the wider significance including orders and decrees. There is just a passage in the case of Tuljaram Row v. Alagappa Chettiar 8 Ind. Cas. 340 : 35 M. 1 : (1910) M.W.N. 697 : 8 M.L.T. 453 : 21 M.L.J. 1 which may help to throw light on this matter. The question in that Case was whether an order of a Singh Judge on the Original Side, whereby he refused to frame an issue asked for by one of the parties, was an order from which an appeal could be had. The Chief Justice, at page 7 of the report, says as follows: '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. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the letters Patent.' In the separate judgment of Mr. Justice Krishnaswami Ayyar will be found collected in useful form a number of authorities in which the word judgment is discussed and the decision to which he ultimately came was that, whilst the word 'judgment' covered, of course final orders, it also covered preliminary and interlocutory judgments but not preliminary or interlocutory orders. That was in strict consonance with the opinion of the Chief Justice and is an understandable interpretation of the word.
4. The question for our decision, therefore, involves are-examination of the facts in order to see what was the result of Mr. Justice Tudball's order. Did it purport to put an end to and determine the rights between the parties on a matter in contest between them? If it did, it was most clearly an order, and on the interpretation given by Mr. Justice Burkitt of Section 10 of the Letters Patent, it was also a judgment. When the application was made before Mr. Justice Tudball, Sadiq Ali was asking that, in view of certain circumstances, an appeal, which had in fact abated and was dead, should be revived and that Sadiq Ali should be remitted back to the position in which he stood before the expiration of the 3rd of January. Mr. Justice Tudball had to take into consideration all the facts of the matter as they were presented to him, and had to determine whether Sadiq Ali had, to his satisfaction, showed that he was prevented by some sufficient cause from continuing the suit. When he made this order, that order, unless an appeal was given by Section 10, was a final order determining once and for all that Sadiq Ali could or could not have the abatement set aside. It was a judicial act, and an act which did settle, once and for all, if unappealable, the rights of the parties. Judged by the test of the case of Wall v. Howard 27 A. 438 at p. 442 : A.W.N. (1895) (sic) : Ind. Dec. (N.S.) 603 and by the Madras case reported as Tuljaram Row v. Alagappa Chettiar 8 Ind. Cas. 340 : 35 M. 1 : (1910) M.W.N. 697 : 8 M.L.T. 453 : 21 M.L.J. 1 to which reference has been made, this decision of Mr. Justice Tudball was a judgment within the meaning of Section 10 of the Letters Patent.
5. In 1906 there came up on appeal to the Chief Justice and Mr. Justice Banerji an appeal from a Single Judge, who had refused to extend the time for the admission of an appeal, an application having been made to them for that purpose under Section 5 of the Indian Limitation Act of 1877. The analogy between, that case and this one under consideration is extraordinarily close. The applicant in the case of Kura Mal v. Ram Nath 28 A. 414 : 3 A.L.J. 218 : A.W.N. (1906) had put all his facts before a Single Judge of this Court and had urged that, in the circumstances, he ought to be given the benefit, of Section 5 of the Indian Limitation Act. In the present case under consideration Sadiq Ali urged upon Mr. Justice Tudball that there were circumstances which should entitle him to have the advantage of the provision in Order XXII, Rule 9(ii), whereby in certain circumstances the abatement is set aside. Both were really asking the same kind of relief. The Chief Justice and Mr. Justice Banerji went at once into the merits of the case and the Counsel for the respondent did not take the point that this was an order of a Single Judge unappealable to lie Bench, nor did that point occur to the learned Chief Justice or Mr. Justice Banerji. We ere sure that they would not have accepted and listened to the appeal unless it was a matter of common practice to admit applications which were of a character wider than those proceedings which can he strictly defined by the use of the word 'judgment.' We are of opinion that, as a general working rule, there has grown up in this Court a practice of regarding those matters which are mentioned in Order XLIII, Rule 1 of the Code of Civil Procedure as being generally appealable from a Single Judge of this Court. to a Bench. In Order XLIII, Rule 1(k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit is mentioned specifically as one from which an appeal shall lie. Therefore, tide is to doubt that there can be an appeal to this Court from the order of, for instance, a District Judge, end that matter at le heard and determined by a Perch of His Court. It is strange, if there is permission to appeal, as undoubtedly there is, from the lower Appellate Court to this Cent, that there should not also be the right of appeal, not merely in a suit, but when the question arises in a Court of Appeal. It has been argued that the very last rule of Order XXII makes it right and proper for us to read Order. XLIII, Rule 1(k) as including not merely a suit but also an appeal; Taking the whole of the circumstances together, we are of opinion that it has teen the practice of this Court to read the word judgment in Section 10 of the letters Patent as having a meaning which certainly covers an order in a case of this kind and the preliminary objection, therefore, fails.
6. We now have to consider what are the merits of the case and the first observation which we wish to make is this, we consider a Bench should be very careful in not interfering with the discretion of a Judge sitting alone. If there are materials upon which a judicial discretion has teen exercised, a Bench must pause before reversing that decision when the matter rests, as we have said, on discretion. But Here may be cases in which one may feel that the Judge has not sufficiently considered the rather special circumstances and in that way it might be right and proper to allow an appeal. But we wish it to be understood that appeals against the discretion of a Single Judge are appeals which will prove in practice to be very difficult of success.
7. Now, without going through the whole of the facts the position can be summarised briefly. Sadiq Ali is a Sub-Assistant Surgeon in Government employ at Cawnpore. The death of Abdul Baqi Khan occurred on the 30th of June 1920 in the same, compound as that in which Dr. Sadiq Ali was living. He explained to the Court that, although he knew some steps would have to be taken consequent on the death of Abdul Baqi Khan, he thought the responsibility for taking those steps rested on the family of Abdul, Baqi Khan, but that at seme time in November he was made acquainted with the true legal position. He came to Allahabad on the morning of the 22nd of December, 1920 and had, for the first time, an interview with Dr. Katju. By law he had time until January 3rd, and if he could have presented his application by January 3rd it would have been accepted as of course. A draft affidavit was prepared on that day but there was a difficulty about getting it sworn, and in fact for one reason or other the necessary documents were not ready, or, at all events, were not transmitted to Dr. Katju until the 24th of December from Cawnpore to which place Dr. Sadiq Ali had returned. Those documents were sent by registered letter to Dr. Katju properly addressed. They are said to have arrived at Allahabad on the 27th but were not delivered at Dr. Katju's house because the Post Office believed him to be, as was the fact, out of station, and, for some reason or other the Post Office did not in fact deliver that letter, posted in Cawnpore on the 24th of December until about 1-15 P.M. on the afternoon of the 3rd of January. Dr. Katju was at that moment engaged in his work in the Courts. This registered letter was one of several letters which were handed to him, and he not unnaturally not wishing to disturb, his mind which was occupied by the cases which were then in progress, handed the letters over to, his clerk and the actual knowledge of the contents of Dr. Sadiq s Ali's letter did not come to his attention until after the rising of the Courts. It was then borne in upon Dr. Katju that the application was beyond time, and though it was possible to have gone to the private house of the Judge who was taking applications that week, he tells us quite frankly that it did not occur to him to do that and to ask that it might be marked as presented on that day. On the next day, January 4th, an application was made and the main facts which we have outlined were made before Mr. Justice Tudball. That learned Judge was not particularly satisfied with the first affidavit and asked for and was given further information. Ultimately, he refused to make the order which was prayed for after having heard the matter debated on to the sides. He seems to have thought that Dr. Sadiq Ali was lacking in a satisfactory explanation of what he had been doing throughout the period of six months which the law allowed him to make the application.
8. We are impressed with two matters. The first is, that Dr. Sadiq Ali is in Government employ--he is a Sub-Assist ant Surgeon and it is no doubt a matter of some difficulty for him to get leave. Therefore, he is not in quite the same position as the ordinary man who is more or less master of his own time. He is not in the same position as a man carrying on an independent business. That is to say, he has to be in Cawnpore at certain definite times, and if he wants leave he has got to make an application for it. That, therefore, may be regarded as one circumstance which, at all events, put some difficulties in the way of Dr. Sadiq Ali.
9. The other matter which appeals more seriously to us is this: There has been established in this country an institution known as the Post Office. You are invited to make certain payments and to hand over letters to the Post Office which the undertake to transmit with reasonable diligence to the addressees of those letters. We, therefore, feel that when Dr. Sadiq Ali handed to the Post Office on the 24th of December a registered letter containing all the documents necessary for Dr. Katju to make the application, he had done all that was reasonable and proper in the circumstances and that he was right in assuming that that letter would reach Dr. Katju, in the ordinary course of things, within such time as to enable Dr. Katju to make the application. It seems to us a very hard thing if we have to shut out these three appeals when Dr. Sadiq Ali would be able to say they were shut out, by this Court although he entrusted to the Government Department a duly addressed prepaid registered letter which, for one reason or the other, did not reach Dr. Katju till ten days after it had been so handed to the Post Office. We must not be misunderstood in this matter. We are not attaching any responsibility for the delay whatever to the Post Office be cause it does appear that registered letter did get to Allahabad on the 27th and that, for reasons apparently known to the Post Office, they felt justified in holding up its delivery until the afternoon of the 3rd of January. The absence of Dr. Katju from the station, the fact that there would be no one carrying on Dr. Katju's business with authority to open letters, the fact that the Post Office would hold up this registered letter until Dr. Katju's return, were matters which could not have been known to Dr. Sadiq Ali and for which, in our view, he ought not to be penalised.
10. The result, therefore, is that we allow the appeal and we set aside the order of abatement. Abdul Sattar Khan and Musammat Soghra have already been impleaded at the hearing of these appeals as the legal representatives of the deceased Abdul Baqi Khan. There is, therefore, no reason why they should not at once be brought on the record of the second appeals out of which these appeals arise as the legal representatives of the deceased respondent. We order accordingly and direct that the said second appeals be set down for hearing as soon as possible. The costs of this application and of the appeal before Mr. Justice Tudball will be costs in the cause, that is to say, the successful party in the appeal will be given those costs.