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Nawab Mumtaz-ud-daula Mukarram Ali Khan of Pahasu Vs. James R.R. Skinner - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in86Ind.Cas.161
AppellantNawab Mumtaz-ud-daula Mukarram Ali Khan of Pahasu
RespondentJames R.R. Skinner
Cases ReferredBozson v. Altrincham Urban District Council
Excerpt:
civil procedure, code (act v of 1908), section 109, order xxii; rule 9, order xliii, rule 1(k) - abatement, application to set aside, dismissal of--appeal--order directing lower court to re-hear application, whether 'final order'--appeal to his majesty in council. - .....the application for permission to implead the heirs. we are aware that an appeal lies to the privy council in cases where an order has been made, which, whilst leaving undecided subordinate or consequential matters, has decided an issue which goes to the root of the case and in effect practically disposes of it in favour of one party or the other. in such cases, however, there has been a contest on the merits; each litigant has been heard and has submitted the crucial facts of his case for consideration and a decision has been obtained on the respective rights of the parties. our attention has been called to the cases of radha kishan v. collector of jaunpur 23 a. 220 : 28 i.a. 28 : 5 c.w.n. 153 : 11 m.l.j. 65 : 3 bom. l.r. 78 : 7 sar. p.c.j. 800 (p.c.) and firm of ram chand manjimal v......
Judgment:

1. This application which is for leave to appeal to His Majesty in Council comes before us under the following circumstances. The plaintiff commenced a suit against the Nawab of Pahasu. That gentleman died on the 26th of March 1922. The plaintiff alleged that she had been away in the hills and had not, in fact, heard of the death of the defendant until June 21st. The legal practitioner representing the plaintiff took the view that the plaintiff had six months within which to bring the heirs upon the record. When three months and two days had expired, namely, on the 28th of June 1922, he made an application in the usual form asking for permission to implead the heirs. The Court on the 6th of November 1922 rejected that application, holding that the period within which such an application should be made was three months, and declared the suit to have abated.

2. On the 9th of December 1922 a further application was made asking that the order of abatement might, in the special circumstances, be set aside, having regard to the provisions of Section 5 of the Limitation Act. That application was rejected on the same day.

3. The plaintiff appealed to this Court against this Order of December 9th and this Court allowed the appeal and directed the learned Subordinate Judge to re-hear the application. From this order leave is sought to appeal to Privy Council.

4. Two points are urged. First, that it is a final order; second, that the case is 'otherwise a fit one for appeal to His Majesty in Council.' It will be convenient to take the latter point first. The proposed suit is one for redemption and, whether the plaintiff be right or not in contending that she had six months within which to implead the heirs, there can be little doubt that, if there had been a prompt application based on Section 5 of the Limitation Act, Counsel for the plaintiff need not greatly have concerned himself with the question whether the limitation was three or six months, but could have contended that, if he were wrong in his belief that it was six months, the two days' default ought to be condoned, in view of the Full Bench decision of this Court in Shib Dayal v. Jagannath Prasad 68 Ind. Cas. 812 : 44 A. 636 : 20 A.L.J. 674 : (1922) A.I.R. (A.) 490. This very question whether the time allowed was three months or six months was considered with great care by the Punjab High Court in the case of Gobind Das v. Rup Kishore 77 Ind. Cas. 409 : 4 L. 567 : 6 L.L.J. 25 : (1924) A.I.R. (L) 65 and that Court decided that, notwithstanding what appears prima facie to be an alteration in the time by Section 2 of Act XXVI of 1920, in fact the Legislature did not intend to make such alteration, and the period within which the heirs could be impleaded remained as hitherto at six months. Whatever importance this point may have had in the past, a decision by the Privy Council as to whether in this particular case now under consideration the time should be three or six months will have no general importance, nor will it be of value in the elucidation of future cases, because the matter is now conclusively set at rest by Act No. XI of 1923 which has prescribed the time as three months. We, therefore, hold that there is nothing in this application which would make it 'otherwise a fit one for an appeal to His Majesty in Council.'

5. We now come to the question whether the decision of this Court falls within the category of a final order. We are of opinion that it does not. There has been no adjudication on the merits. They have not yet been discussed. All that this Court has decided is that the Judge is to re-hear the application for permission to implead the heirs. We are aware that an appeal lies to the Privy Council in cases where an order has been made, which, whilst leaving undecided subordinate or consequential matters, has decided an issue which goes to the root of the case and in effect practically disposes of it in favour of one party or the other. In such cases, however, there has been a contest on the merits; each litigant has been heard and has submitted the crucial facts of his case for consideration and a decision has been obtained on the respective rights of the parties. Our attention has been called to the cases of Radha Kishan v. Collector of Jaunpur 23 A. 220 : 28 I.A. 28 : 5 C.W.N. 153 : 11 M.L.J. 65 : 3 Bom. L.R. 78 : 7 Sar. P.C.J. 800 (P.C.) and Firm of Ram Chand Manjimal v. Firm of Goverdhan Das Vishindas Ratanchand 56 Ind. Cas. 302 : 18 A.L.J. 591 : 24 C.W.N. 721 : 22 Bom. L.R. 606 : 39 M.L.J. 27 : 12 L.W. 15 : 2 U.P.L.R. (P.C.) 94 : (1920) M.W.N. 407 : 28 M.L.T. 87 : 47 I A. 124 : 47 C. 918 : 14 S.L.R. 191 (P.C.) and we are of opinion that these decisions govern the present case and are in principle undistinguishable from it. In our opinion the order now sought to be appealed is an interlocutory and not a final order. See also In re Riddell (1888) 20 Q.B.D. 512: 57 L.J.Q.B. 259 : 58 L.T. 838: 36 W.R. 532 : 5 Morrell 59, where an order dismissing an action for want of prosecution was held not to be a final one. The present order exactly satisfies the definition of an interlocutory order laid down by Lord Esher and Fry, L.J., and concurred in by Lopes, L.J., in Salaman v. Warner (1891) 1 Q.B. 734 : 60 L.J.Q.B. 624 : 39 W.R. 547, and though this case was not followed by the Court of Appeal in Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547 : 72 L.J.K.B. 271 : 51 W.R. 337 : 67 J.P. 397 : 19 T.L.R. 266 : 1 L.G.R. 630, we do not consider the decision in that case is of any assistance to the present applicant. The order of this Court did not decide the rights of the parties. Their respective rights have yet to be determined if and when the plaintiff succeeds in impleading the heirs. For these reasons we reject the application with costs and fees on the higher scale.


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