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Radhey Shyam Vs. Sita Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 7 of 1980
Judge
Reported inAIR1981Raj105; 1980()WLN533
ActsRajasthan High Court Ordinance, 1949 - Sections 18 and 18(1); Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 5
AppellantRadhey Shyam
RespondentSita Ram
Advocates: D.D. Patodia, Adv.
DispositionAppeal dismissed
Cases ReferredSouthern Roadways (P) Ltd. v. P. Mathurai Veera
Excerpt:
.....court might be allowed to hear appeals against orders of inter locutory nature passed by a learned single judge on application like order 41 rule 5 c.p.c. or other stay applications filed along with writ petitions under article 226 or along with petitions under the company law unless those orders finally and conclusively determine the rights of the parties in those proceedings.;the present appeal is not maintainable under sub-section (1) of section 18 of the ordinance. - - as this definition covers not only decisions in suit or actions but 'orders' in other proceedings as well which start with applications, it may be said that any final order passed on an application in the course of a suit, e. it is clearly an order and such order has not been made applicable under order 43, c. thus,..........does not lie under section 18 ofthe ordinance against the impugnedorder of the learned single judge passedon a stay application filed under order 41,rule 5, c. p. c. in these circumstancesthe case has been listed before the courtand we have heard the learned counselfor the appellant on the objection raised by the office.4. mr. patodia, learned counsel appearing for the plaintiff appellant has contended that an appeal lies to the division bench against a judgment passed by the learned single judge under sub-section (1) of section 18 of the ordinance. it is contended that the impugned order passed by the learned single judge falls within the meaning of word 'judgment'. reliance in this connection is placed on asrumati debi v. kumar rupendra deb, air 1953 sc 198 and k. g. rangaswami.....
Judgment:

1. This is a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 (hereinafter referred to as 'the Ordinance'), against the order of the learned single Judge dated 18th December, 1979 made on a Civil Miscellaneous Stay petition filed under Order 41, Rule 5, C. P. C. in a civil first appeal.

2. The plaintiff appellant obtained a decree for a sum of Rs. 26,277/43 p, on fifth October, 1979 from the court of Additional District No. 4, Jaipur City. Aggrieved against the aforesaid decree the defendant filed a first appeal in this court and filed a stay application under Order 41, Rule 5, C. P. C. along with the appeal for staying the execution of the decree passed by the trial Court. Learned single Judge heard the parties on the stay application and passed the following order:

'Heard learned counsel for the parties. Out of the decretal amount, appellant would pay an amount of Rs. 12,000/- to the respondent and for the rest of the amount would submit a solvent surety to the satisfaction of the Additional District and Sessions Judge No. 4, Jaipur City, Jaipur. Respondent would submit a solvent surety for restitution while withdrawing the amount of Rs. 12,000/-. The period of three months is allowed for making payment,'

3. Aggrieved against the, aforesaidorder the plaintiff has now filed the present appeal before the Division Benchunder Section 18 of the Ordinance. TheOffice raised an objection that specialappeal does not lie under Section 18 ofthe Ordinance against the impugnedorder of the learned single Judge passedon a stay application filed under Order 41,Rule 5, C. P. C. In these circumstancesthe case has been listed before the Courtand we have heard the learned counselfor the appellant on the objection raised by the office.

4. Mr. Patodia, learned counsel appearing for the plaintiff appellant has contended that an appeal lies to the Division Bench against a judgment passed by the learned single Judge under Sub-section (1) of Section 18 of the Ordinance. It is contended that the impugned order passed by the learned single Judge falls within the meaning of word 'judgment'. Reliance in this connection is placed on Asrumati Debi v. Kumar Rupendra Deb, AIR 1953 SC 198 and K. G. Rangaswami Chettiar and Co. v. K. r; Eswaramurthy Goundar, AIR 1954 Mad 1053 (FB).

5. Learned counsel also submitted that though there are two decisions of this Court in Rajputana Cold Storage and Refrigeration Co. Ltd v. Rani Ajit-kunverha, It Rule (1955) 5 Raj 418 and State v. Hindo Open Sugar Mills, 1973 Raj LW 633: (AIR 1974 Raj 110), these two cases are distinguishable.

6. Before considering the arguments of the learned counsel for the appellant it would be proper to reproduce Section 18 of the Ordinance:

'Section 18-- Appeal to the High Court from Judges of the Court-

(1) An appeal shall lie to the High Court, from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under Section 43 or in the exercise of criminal jurisdiction) of one Judge of the High Court.

(2) Notwithstanding anything hereinbefore provided, an appeal shall lie to the High Court from a judgment of one Judge of the High Court made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court where the Judge who passed the judgment declares that the case is a fit one for appeal.'

7. There is no controversy that Sub-section (2) of Section 18 of the Ordinance does not apply in the present case. Thus, we have to determine whether an appeal lies to the Division Bench against the impugned order of the learned single Judge under Sub-section (1) of Section 18 and whether such order amounts to a judgment.

8. We need not dilate much on the Full Bench ruling of the Madras High Court cited by the learned counsel for the appellant when two cases decided by the Division Bench of this Court are available on the controversy raised before us. In Rajputana Cold Storage and Refrigeration Co. Ltd.'s case (ILR (1955) 5 Raj 418) (supra) a Division Bench of this Court interpreted the meaning of word 'judgment' under Section 18 (1) of the Ordinance. A learned single Judge of this Court while dealing with the petition under the Indian Companies Act. 1913 passed an order that the petition need not be dismissed as objected to by the opposite party but directed that the disposal of the petition be stayed during the pendency of a suit filed in Bombay. Aggrieved against the aforesaid order the Company filed an appeal before Division Bench and a preliminary objection was taken by the respondentthat an appeal was not competent Bapna, J., who delivered the judgment observed as under with regard to the observations of their Lordships of the Supreme Court in Asrumati Debi's case (AIR 1953 SC 198) (supra) :

'The question was examined by the Supreme Court in Asrumati Debi v. Kumar Rupendra Deb, AIR 1953 SC 198, where the various conflicting decisions on the interpretation of the word 'judgment' have been examined, and while refraining from expressing any definite opinion, the two earliest cases, viz.. Justices of the Peace for Calcutta v. Oriental Gas Company, (1872) 8 Beng LR 433 and Tuljaram v. Alagappa, (1912) ILR 35 Mad 1 (FB) were explained as follows:

'It cannot be said, therefore, that according to Sir Richard Couch every judicial pronouncement on a right or liability between the parties is to be regarded as a 'judgment', for in that case there would be any number of judgments in the course of a suit or proceeding each one of which could be challenged by way of appeal. The judgment must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. It involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. (Justices of the Peace for Calcutta's case (18721 8 Beng LR 433). This view, which is implied in the observation of Sir Richard Couch, C. J., quoted above, has been really made the basis of the definition of 'judgment' by Sir Arnold White, C. J., in the Full Bench decision of the Madras High Court to which reference has been made, vide (1912) ILR 35 Mad 1 (FB). According to White, C. J., to find out whether an order is a 'judgment' or not, we have to look to its effect upon the particular suit or proceeding in which it is made. If its effect is to terminate the suit proceeding, the decision would be a 'judgment' but not otherwise. As this definition covers not only decisions in suit or actions but 'orders' in other proceedings as well which start with applications, it may be said that any final order passed on an application in the course of a suit, e.g., granting or refusing a party's prayer for adjournment of a suit or for examination of a witness, would also come within the definition. This seems to be the reason why the learned Chief Justice qualifies the general proposition laid down above by stating that

'an adjudication on an application, which is nothing more than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of 'Letters Patent.'

9. Bapna, J., then considered the facts of the case before them and observed as under:

'The observations of their Lordships of the Supreme Court in Asrumati Debi v. Kumar Rupendra Deb, AIR 1953 SC 198, do not leave any room for doubt that the judgment must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. In the present case, the learned Judge did not give any decision, but only deferred giving decision. He even deferred the making of an enquiry into the claims of Maharaj Digvijai Singh and Rani Niranjan Kumari. There has thus been no decision whatsoever in the case except that so far as the claim of Rani Ajitkunverba is concerned, it was held to be the subject of a bona fide dispute. The learned Judge did not express any opinion with regard to the claims of Maharaj Digvijai Singh and Rani Niranjan Kumari. The matter really in dispute was whether the application for winding up should be thrown out or accepted and the decision depended on a finding on the question whether the Company was unable to pay its debts. The learned single Judge did not decide the question but deferred his decision till the decision in the Bombay suit In our opinion, the appeal was not competent under Section 18 of the Rajasthan High Court Ordinance inasmuch as the order passed by the learned single Judge was not a judgment within the meaning of Section 18 of the Ordinance.'

10. Again a Division Bench of this Court consisting of Beri, C. J. and Joshi. J., in State v. Hindo Open Sugar Mills (AIR 1974 Raj 110) (supra) considered a similar controversy arising in an appeal under Section 18 of the Ordinance against an order of the learned single Judge passed in petition under Article 226 of the Constitution of India. In that case the learned single Judge by his order dated 17th January, 1373, ordered that it will be in the interest of justice if the operation of the Notification No. F. 2 (41) Ind/7l Vol. 1 dated 28-11-1972 is stayed subject to the condition that an Inspector if appointed by the Government, supervised the purchases of sugarcane by the petitioner atthe place where the sugarcane was purchased and weighed. The petitioners were to comply with the conditions of purchasing only 300 quintals of sugarcane per day. It was expected that the Government shall issue permit to the petitioner to start functioning from day after tomorrow. Against this interim order the special appeals were preferred under Section 18 of the Ordinance. The office raised an objection that these appeals were not maintainable. In this manner the controversy came to be considered in that case and it was observed as under:

'The crucial word which calls for interpretation is the word 'judgment' employed in Section 18 (1). The word 'judgment' also occurs in clauses 15 and 39 of the Letters Patent of the Madras High Court which received a close and careful consideration of the five learned Judges of that Court in Southern Roadways (P) Ltd. v. P. Mathurai Veera-swami, AIR 1964 Mad 194 (FB). They observed that true import of the word judgment or the tests by which any judicial order can be regarded as a judgment is that it should be the determination of right and liability. The word 'determination' itself indicates that such right as has been adjudicated upon must have been so adjudicated finally, so far as the controversy between the parties in the court was concerned. In their opinion, the word 'judgment' employed in Article 133 of the Constitution has the same connotation as in clauses 15 and 39. In Asrumati Debi's case (AIR 1953 SC 198) it has been observed as:

'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 Save and except final and preliminary judgments thus defined, all other decisions are 'orders' and they do not come within the description of 'judgments' under the relevant issue of the Letter Pat-tent.'

It is not necessary to examine any other case for the simple reason that the basic ingredients of the word 'judgment' have been authoritatively laid down by the Supreme Court in the above decision The small question which arises for our consideration is whether the order passed by the learned single Judge on 17th January, 1973, is a judgment against which an appeal is competent under Section 18 of the Rajasthan High Court Ordinance. Our answer to the question is plainly in the negative. Our reasons are that the order operates subject to the ultimate decision of the rights of the parties in regard to the validity of the notification of 28th November, 1972, Specific conditions have been imposed by the learned single Judge under which this order has been passed. All arguments against the advisability or otherwise of such an order are irrelevant for the purposes of deciding the question whether the order appealed against is a judgment or an interlocutory order. The grievance of the learned counsel which he more than once emphasised was that this order settled the fate of the 7 petitions in favour of the petitioners. The crucial question whether the notification is valid, and the fundamental rights of the petitioner violated or not remains to be decided. The operation of the impugned notification has been kept in abeyance until the basic questions were decided. In our opinion, it is a clear case of an interlocutory order being assailed in appeal under Section 18 of the High Court Ordinance which is not permissible. The order of 17-1-1973 is not a judgment and these seven appeals, therefore, are not maintainable. The office objection is upheld.'

11. Mr. Patodia, learned counsel for the appellant has contended that a different meaning should be imported to the word 'judgment' with regard to the order passed on an application under Order 41, Rule 5, C. P. C. We are not impressed with the distinction sought, to be pointed out by the learned counsel. We agree with the view taken by the earlier 2 Division Benches of this Court. An order passed on an application under Order 41, Rule 5, C. P. C. does not conclusively determine the rights of the parties with regard to the matters in issue in the appeal.

12. . Even if we examine the matter from another angle, then admittedly an order passed on an application under Order 41, Rule 5 is not a decree. It is clearly an order and such order has not been made applicable under Order 43, C. P. C. Thus, it would be clear from the provisions of the C. P. C. itself that if any order is passed by a court on a petition under Order 41, Rule 5, C. P. C.,then the same is not appealable and at the most a party aggrieved may file a revision if it comes within the purview of Section 115, C. P. C. Then, if a District Judge hearing a first appeal against a judgment of the Munsif or Civil Judge passes an order on art application under Order 41, Rules 5, C. P. C. such an order cannot be challenged in appeal in the High Court and the intention of the legislature in not making such orders appealable seems to be that such orders are of not much consequence as they do not determine the rights of the parties with regard to the matters in issue in the suit, or in the appeal. That shows that the intention of the legislature is to put a sort of finality on such orders and not to burden the higher courts unnecessarily with such kind of litigation. Thus, it appears that it could never have been intended that under Section 18 of the Ordinance a Division Bench of the High Court might be allowed to hear appeals against orders of interlocutory nature passed by a learned single Judge on applications like Order 41, Rule 5, C. P. C. or other stay applications filed along with writ petitions under Article 226 or along with petitions under the Company Law unless those orders finally and conclusively determine the rights of the parties in those proceedings.

13. We, therefore, sustain the objection raised by the office and hold that the present appeal is not maintainable under Sub-section (1) of Section 18 of the Ordinance.

14. In the result this appeal is dismissed.


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