1. The order appealed against was an order by a Judge sitting on the Original Side of this Court refusing to direct certain allegations in defendants' written statement to be struck out at the instance of the plaintiff as being unnecessary and scandalous.
2. In our opinion the Judge's order in this case was not a ' judgment' within the meaning of Clause 15 of the Letters Patent and consequently is not appealable. The application was not one which started independent proceedings ancillary to the suit [see the observations of White, C.J. in Tuljaram Rao v. Alagappa Chettiar ILR (1910) M 1 nor could its effect in any event be to put an end to the suit. The order, of course, concluded the proceedings in which the application was made, if that could be regarded as a separate and independent proceeding, but the same might be said of every order made by a Court in the course of the trial of a suit. The proceeding in which Waller, J.'s order was passed was part of the proceedings in the suit itself. Therefore I think that when the learned Chief Justice spoke of putting an end to the suit or proceeding, he was thinking of some kind of independent proceeding which could not be called a suit.
3. It was held in Mahalingam v. Natesa Aiyar (1915) 3 LW 107 that an order refusing leave to amend pleadings was not a judgment within the meaning of Clause 15 of the Letters Patent. The present order is of a cognate nature, the difference being only that there the plaintiff sought to amend his own plaint and here the plaintiff wishes to have the defendants' written statement amended.
4. The fact that no appeal is provided by the Civil Procedure Code against an order under Order 6, Rule 16 is an indication that the Legislature intended that there should be no appeal in such cases.
5. The observation of Waller, J. in Sonachalam Pillai v. Kumaravelu Chettiar ILR (1923) M 316 that all orders passed after contest inter partes should be regarded as judgments was not necessary for the disposal of that case, which followed the decision in Tuljaram Rao v. Alagappa Chettiar ILR (1910) M 1 and appear to us to be too wide. The learned Judge adopted the view of Bittleston, J. in DeSouza v. Coles (1868) 3 MHCR 384. from which White, C.J. had expressed his dissent in Tuljaram Rao v. Alagappa Chettiar (1). The appeal is rejected on the preliminary point of admissibility with costs.