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Laxminarayan Tamkorwalla Vs. Udairam Khemka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 255 of 1938 and A.F.O.O. No. 131 of 1959
Judge
Reported inAIR1961Cal386
ActsCode of Civil Procedure (CPC) - Order 9, Rule 5
AppellantLaxminarayan Tamkorwalla
RespondentUdairam Khemka and ors.
Appellant AdvocateE.R. Meyer, Adv.
Respondent AdvocateR.C. Deb, Adv.
DispositionAppeal dismissed
Cases ReferredMohammad Felumeah v. S. Mondal
Excerpt:
- .....defendant in the suit and for substitution of the appellant in his place and for issue of a fresh writ of summons, the returnable date being two months from the date of the signing of the order and for directions upon the sheriff to receive the writ within a fortnight from the signing of the order. on the 3rd september 1949 the writ was issued and two days thereafter the writ was lodged with the sheriff for service. on the 7th september 1949 the sheriff made over the writ for effecting service to a bailiff named rahim. the returnable date of the writ, according to the terms of the order dated the 10th of may 1949, expired on the 19th of september 1949. thereafter the suit again went underground for a period of five years and we don't know what happened during this period. in january,.....
Judgment:

Lahiri, C.J.

1. This appeal is directed against an order of Sankar Prasad Mitra, J. dated the 18th March 1959 refusing to recall an earlier order made by him on the 3rd June 1958 by which he directed the issue of a duplicate writ of summons upon the appellant and ordered the Sheriff to accept the writ within fourteen days of the signing of the order.

2. The facts of this case are somewhat extraordinary and illustrate how a suit can be kept pending for an indefinite length of time by clever manipulations. On the 9th of February 1938 the plaintiff respondent instituted a suit for a declaration that a partnership firm of which the appellant's father was alleged to be one of the partners, stood dissolved with effect from the 12th of April 1935 and for certain other reliefs. In that suit there were three defendants of whom the appellant's father was the third. For some reasons which do not appear from the materials before us, the suit remained undisposed of for eleven years in the first instance and on the 10th of May 1949 an order was made for recording the death of Harakchand Tamkorwalla, the father of the appellant and the third defendant in the suit and for substitution of the appellant in his place and for issue of a fresh writ of summons, the returnable date being two months from the date of the signing of the order and for directions upon the Sheriff to receive the writ within a fortnight from the signing of the order. On the 3rd September 1949 the writ was issued and two days thereafter the writ was lodged with the Sheriff for service. On the 7th September 1949 the Sheriff made over the writ for effecting service to a bailiff named Rahim. The returnable date of the writ, according to the terms of the order dated the 10th of May 1949, expired on the 19th of September 1949. Thereafter the suit again went underground for a period of five years and we don't know what happened during this period. In January, April and July 1954 the suit appeared on the peremptory list but it again went underground for the third time for another period of four years and we are again left in the dark as to what happened during this period. On the 17th May 1958 an application was made for the issue of a duplicate writ of summons in terms of the order of the Court dated the 10th of May 1949 and for a direction upon the Sheriff to receive the writ within fourteen days from the signing of the order to be made. No notice of this application was served upon the appellant. In order to explain the delay in making the application, the plaintiff respondent alleged that his previous Attorney Messrs. Khaitan and Company did not inform him of the fact that the original writ of summons had not been returned by the Bailiff and that the Bailiff who was entrusted with the duty of effecting service of summons had gone away to Pakistan. The plaintiff alleged that for this default on the part of his original Attorney he obtained a change of Attorney from Messrs. Khaitan and Company to Messrs. Nahar and Dutta. The application for issuing a duplicate writ of summons made by the plaintiff respondent was granted by the Court on the 3rd June 1958 but this order, as I have already said, was made without any notice to the appellant. The duplicate writ of summons was served upon the appellant on the 4th July 1958 and on the 1st August 1958 the appellant filed a written statement without prejudice to his rights and contentions that the suit should be dismissed as against him and that there was no valid and sufficient ground for issuing a duplicate writ of summons. On the 5th December 1958 the appellant made a substantive application for setting aside the order dated the 3rd June 1958 by which the duplicate writ of summons was ordered to be issued upon him. This application was dismissed by the learned Judge by an order dated the 18th March 1959 and the appellant has filed this appeal against that order.

3. Whatever may be the merits of the contention urged on behalf of the appellant, a preliminary objection has been taken on behalf of the respondent to the effect that the appeal is not maintainable because the order appealed from is not a judgment within the meaning of Clause 15 of the Letters Patent. What is or is not a judgment within the meaning of Clause 15 of the Letters Patent has been the subject-matter of so many decisions that I do not pretend to make any useful addition to the existing literature on the subject. It is well known that according to Sir Richard Couch, C, J., in order to be a judgment within the meaning of Clause 15 of the Letters Patent, the adjudication must be 'a decision which affects the merits of the question between the parties by determining some right or liability'. This test was laid down in the year 1872 in the case of Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd. 8 Beng LR 433. In the year 1912 a Full Bench of the Madras High Court laid down the proposition that in Order to be a judgment it is not necessary that the decision must be one affecting the merits of the suit or proceeding (See the observations of Sir Arnold White C. J. in the case of Tuljaram Row v. Alagappa Chettiar, ILR 35 Mad 1). It was at one time supposed that these two views are in conflict with each other and that the definition of the word 'judgment' as given by the Madras High Court was wider than the definition given by Sir Richard Couch in the case of Justices of the Peace for Cal-cutta, 8 Beng LR 433. In Asrumati Debi v. Rupen-dra Deb, : [1953]4SCR1159 the Supreme Court after an elaborate consideration of the two apparently conflicting views came to the conclusion that the conflict was more apparent than real. The Supreme Court interpreted the definition given by Sir Richard Couch to mean that according to that definition the adjudication must involve 'the determination of some right or liability though it may not be necessary that there must be a decision on the merits'. In other words, according to the Supreme Court, in order to be a judgment within the meaning of Clause 15 of the Letters Patent the adjudication need not be a decision on the merits of the controversy between the parties in the suit but it must nevertheless be a decision affecting the merits or the case. The Supreme Court then proceeded to observe as follows:

'This view which is implied in the observations 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 (ILR 35 Mad 1)'.

This interpretation of the two apparently conflicting views of the Calcutta and Madras High Courts has been followed by Chakravarti, C. J. and Sarkar, J. in the case of Shorab Merwanji Modi v. Mansata Film Distributors, 61 Cal WN 559: : AIR1957Cal727 where the Madras view has been described as a variant of the Calcutta view. For the purposes of the present appeal, however, it is not necessary to consider the precise effect of the decision of the Supreme Court in Asrumati's case : [1953]4SCR1159 upon the Calcutta view and the Madras view, though Mr. Deb appearing for the respondents has contended that the Supreme Court has upheld the Calcutta view in Asrumati's case : [1953]4SCR1159 by holding that in order to be a judgment within the meaning of Clause 15 of the Letters Patent, there must be a determination of some right or liability affecting the merits of the case although the determination may not be on the merits of the case. It is to be noted however, that even according to the Madras view, which is supposed to be the wider view, '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 Clause 15 of the Letters Patent'.

4. The real question in the present case, therefore, is whether the order made by Sankar Prasad Mitra, J. is an adjudication of some right or liability affecting the merits of the case or whether it is merely a step towards obtaining a final adjudication in the suit. Mr. Meyer appearing in support of the appeal has contended that the order is an adjudication of a right of the appellant because it destroys the immunity which the appellant enjoyed before the order was made from a decree being passed against him in the suit although he was a, party to the suit. In other words, according to Mr. Meyer, the appellant had a right to the immediate termination of the lis instead of being compelled to go through the gamut of a suit on the original side and this right, of the appellant has been destroyed by the order made by the learned Judge below. I am, however, unable to accept this argument. The learned trial Judge has found that Order 9 Rule 5 has no application to this case because the original writ of summons was never returned as served but was lost. That finding of the learned Judge is not challenged before us. If Order 9 Rule 5 does not apply to the facts of this case, I fail to see how the appellant can be said to have enjoyed immunity from a decree being passed against him. The fact that the appellant continued as a party defendant to the suit from the year 1949 when he was substituted in the place of his deceased father, made him liable to a decree that might be passed against him and that liability continued till the 3rd June 1958 when an order was made for issuing a duplicate writ of summons against him. The appellant had no right at any point of time between 1949 and the 3rd of June 4.958 to have the suit terminated against him. The order for issue of a duplicate writ of summons that was passed on the 3rd June 1958 is, in my opinion, not an adjudication of any right but a step towards obtaining an adjudication in the suit, or, in other words, it is merely an order which regulates the procedure in the suit without determining any right or liability--far less a right or liability--affecting, the merits of the case.

5. Mr. Meyer cited before us four decisions of this Court in support of his contention. The first decision cited by him is that of Sanderson, C. J. and Woodroffe, J., in the case of Koramall Rambullobh v. Mungilal Dalimchand, 23 Cal WN 1017: (AIR 1920 Cal 163) where it was held that an order dismissing an application for a judgment on admission is a judgment within the meaning of Clause 15 of the Letters Patent. That was a case where the learned Judges pointed out that the right of the plaintiff to obtain a judgment upon the pleadings was a valuable right under Order 12 Rule 6 of the Code of Civil Procedure and if a plaintiff is deprived of that right, it amounts to a determination of a right in the suit. There is, however, no provision in the Code of Civil Procedure which confers upon the defendant a right to have the suit dismissed as against him on the ground of delay in serving the writ of summons unless the case comes within the four corners of Order 9 Rule 5 and it is- conceded that Order 9 Rule 5 has no application to this case. Koramall's case, 23 Cal WN 1017: (AIR 1920 Cal 163) therefore, is of no assistance to the appellant.

6. The second case cited by Mr. Meyer is that of Levy Brothers and Knowles, Ltd. v. Subodh Kumar Day, 31 Cal WN 894: (AIR 1927 Cal 689) where Rankin, C. J., and Mukherji, J. held that an order refusing a creditor's claim to prove his debt in liquidation proceedings and relegating him to a suit is an adjudication on an important right and is therefore, a judgment within the meaning of Clause 15 of the Letters Patent. At p. 897 (of Cal WN):(at p. 691 of AIR) Rankin, C. J. observed as follows:

'In my judgment this order is an order which deprives the Appellants of a substantial and important right and I am not prepared to hold that this order is not appealable by reason that it is not a judgment under Clause 15 of the Letters Patent'.

This passage clearly shows that an order which alters the forum of a suit is an adjudication of a right. The order under appeal before us in the present case has no such effect. Consequently, this decision also does not support the appellant's claim.

7. The third decision relied upon is that of Sarat Chandra Sarkar v. Maihar Stone and Lime Co., Ltd., ILR 49 Cal 62: (AIR 1922 Cal 335) where it was held that an order setting aside an abatement of a suit is a 'judgment' under Clause 15 of the Letters Patent. This case is also distinguishable from the facts of the present case because abatement of a suit against a particular defendant has the inevitable result of the dismissal of the suit as against him and any order setting aside the abatement of a suit is a decision affecting the merits of the case and is, therefore, a judgment within the meaning of Clause 15 of the Letters Patent.

8. Reliance was also placed upon a very recent decision of this Court in the case of Mohammad Felumeah v. S. Mondal, : AIR1960Cal582 which was an appeal against an order modifying an order of interim injunction made in connection with a Rule Nisi under Article 226 of the Constitution. The subject-matter of the interim injunction was the same as the subject-matter of the Rule Nisi and it was held by a Division Bench that that modification of the order of interim injunction was an order touching the merits of the case and was, therefore, appealable. The facts of this case also are very different from the facts of the case before us and I cannot see how the decision in Felumeah's case supports the contention that the order appealed from in the present case is a judgment within the meaning of Clause 15 of the Letters Patent.

9. None of the decisions cited on behalf of the appellant enables us to hold that the order against which the appeal is directed in the present case is a judgment under Clause 15 of the Letters Patent. On the merits also, as I have already said, the order is merely one regulating the procedure in the suit and is a step towards obtaining a final adjudication against the appellant. The preliminary objection taken on behalf of the respondent must, accordingly, prevail and this appeal must be dismissed on that ground alone.

10. Although the appeal fails on the preliminary ground, I cannot but take a very serious view of the conduct of the plaintiff respondent. It will appear from the dates which I have already given, that the plaintiff has succeeded in keeping the suit pending against the appellant for eleven years. The explanation of the plaintiff is that his previous Attorney Messrs. Khaitan and Company did not inform him about the fact that the first writ of summons lodged with the Sheriff for service was lost and that the Bailiff who was entrusted with the duty of serving the writ had gone away to Pakistan and for that reason the plaintiff obtained a change of Attorney from Messrs. Khaitan and Company to Messrs. Nahar and Dutta. It is not for us in this appeal to apportion the blame between the plaintiff and his original Attorney. It has been found by the learned Trial Judge that the suit appeared on the peremptory list on three ocasions in the year 1954 and it also appeared on one occasion on the peremptory list on the 15th April, 1958. The application for issue of a duplicate writ of summons was made on the 17th May 1958. Whoever may have been responsible for the delay, whether, it was the plaintiff himself or his original Attorney, the result has been disastrous so far as the appellant is concerned; because the appellant has now to defend a suit for a declaration that the partnership stood dissolved with effect from the 12th April, 1935, an event which took place, according to the plaintiffs allegation, more than 25 years ago. So far as the appellant is concerned it matters nothing whether it was the plaintiff or his original Attorney who was responsible for the laches and he is certainly entitled to hold the plaintiff responsible for his default in bringing the suit to trial with reasonable diligence.

11. For these reasons I direct that the plaintiff respondent do pay and bear the appellant's costs of and incidental to this appeal.

Certified for two Counsel.

Bose, J.

12. I agree.


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