1. On January 24, 1969 the appellant instituted the suit being suit No. 341 of 1969 against the predecessor in title of the respondent for the enforcement of a mortgage and a decree under Order XXXIV, Rule 4 of the Code of Civil Procedure in form No. 5 Appendix 'D' to Schedule I of the said Code.
2. The original defendant filed her written statement. Upon the death of the original defendant on June 7, 1963(?) the present respondent was substituted in the place and stead of the original defendant. The respondent filed her written statement in the suit on June 12, 1970. On April 24. 1972 the suit which had been appearing in the peremptory list of S. C. Deb J. for several days, was called on at about 12-15 p. m. The petitioner's counsel Mr. P. K.. Roy was not present at that time. The suit was passed over on the prayer of the Solicitor for the appellants.
3. The Solicitor for the appellant thereafter went to the counsel Mr. P. K. Roy in the court of P. K. Banerjee J. Mr. Roy was addressing the Court at that lime. At about 12-35 p. m., Mr. Roy concluded his address at the Court of P. K. Banerjee. J. and became engaged in certain company matters in the Court of Salil Kumar Roy Chowdhury J. Mr. Roy as soon as he was free, went to the Court of Deb, J. at about 12-55 p. m. Mr. Roy and the Solicitor for the appellant came to know that the suit had been called on in the meantime twice and dismissed for non-prosecution. The matter was mentioned by the learned counsel for the appellant at the time of rising of the Court during the mid-day recess; no order was made at that time since nobody on behalf of the respondent was present in Court.
4. After the mid-day recess, the matter was again mentioned by the counsel for the appellant. The counsel for the respondent Mr. T. K. Biswas consented to the restoration of the suit on the list. Nonetheless, the learned Judge directed that a formal application should be made by the appellant. The appellant made an application for the restoration of the suit. The same was opposed by the respondent. The said application was dismissed by the learned Judge.
5. In this appeal, the appellant challenges the said order and prays for setting aside of the same and restoration of the suit on the list for hearing.
Mr. Biswas appearing on behalf of the respondent took a preliminary . objection, namely, that the order under appeal was not appealable. Mr. Biswas submitted that none of the parties appeared at the time when the suit was called on for hearing and thus the suit was dismissed for non-prosecution under Rule 3 of Order IX of the Code of Civil Procedure. The application for restoration of the suit thus was made under the provisions of Rule 4 of Order IX of the Code. The order under appeal was made in the said application. Order made in an application under Rule 4 of Order IX of the Code of Civil Procedure is not appealable, under the Code of Civil Procedure, inasmuch as the said order has not been made appealable by Order 43 read with Section 104 of the Code of Civil Procedure. Mr. Biswas in support of his submission relied on the case of Nanalal M.V. (Gunnies) & Co. Pvt. Ltd. v. Gordhan Das Jerambhai, : AIR1965Cal547 , It was decided by a Division Bench of this Court in the said case, that an order made under Order IX Rule 4 of the Code of Civil Procedure was not appealable in view of the provisions of Order 43 read with Section 104 of the Code. In the said case, however, it was neither urged nor considered by the Court as to whether such an order was a 'judgment' within the meaning of Clause 15 of the Letters Patent. If the order under appeal be a 'judgment' within the meaning of Clause 15 of Letters Patent, the order would certainly be appealable.
6. The term 'judgment' appearing in Clause 15 of the Letters Patent has been considered time and again by different Courts. It must be noted that the Courts have more often than not come to impute various meanings to the said expression. But the opinions of the Courts in regard to the term 'judgment' have oscillated between two extreme opinions expressed in regard to the said expression. One such opinion was expressed in the case of Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd., (1872) 17 Suth WR 364 by the Calcutta High Court. The other opinion was expressed by the Madras High Court in its Full Bench decision in Tuljaram v. Algappa, (1912) ILR 35 Mad 1.
7. Sir Richard Couch C. J. observedthat ''judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability, it may be either final or preliminary or interlocutory ...............' Thesaid observations were approved of by the Supreme Court in the case of Radheshyam v. Shyam Behari Singh, : 1SCR783 . The Supreme Court expressed its view on the question in the following words, to wit:
'For an order to be a 'judgment' it is not always necessary that it should put an end to the controversy in the suit or should terminate the suit. Even the narrower definition of a judgment as given by Couch C. J, in the Justices of the Peace for Calcutta, (1872) 8 Beng LR 433 = 17 Suth WR 364 was that it must mean a decision which affects the merits of the question between the parties by determining some right or liability and such a decision might be either final or preliminary, or interlocutory'.
8. The order under appeal, in our opinion, terminated finally the lis between the parties in the suit. It put an end to the said proceeding finally between the parties, In that view of the matter, we are of the opinion that the order under appeal is a 'judgment' within the meaning of Clause 15 of the Letters Patent. In the premises an appeal lies from the said order and the present appeal is maintainable.
9. It was stated in the petition for restoration of the suit that the learned counsel for the plaintiff was engaged at the relevant time in the Courts of P. K. Banerjee J. and S. K. Roy Chowdhury J. The said statement has not been traversed in the affidavit filed on behalf of the respondent and used in opposition to the petition of the appellant, it has been held by a Division Bench of this Court in Gobindas Bhattar v. Pran Kumar Das, (1959) 63 Cal WN 877, that the Counsel's engagement in another Court when the suit is called on, if not denied in the opposition filed by the defendant constitutes sufficient cause for non-appearance at the hearing. By reason of the premises we are of the view that the appellant showed sufficient cause for his non-appearance when the suit was called on and dismissed for default. In the premises the order under appeal cannot be sustained and must be set aside.
10. For the reasons stated hereinbefore, this appeal must succeed and is allowed. The order under appeal is set aside. The suit is restored and will appear on the appropriate list for hearing. The costs of and incidental to this appeal as well as of the application for restoration of the suit shall be costs in the suit.
B. C. Mitra, J.
11. I agree.