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Nurul Hoda and ors. Vs. Amir Hasan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 112 of 1964 and Suit No. 260 of 1945
Judge
Reported inAIR1972Cal449,76CWN1039
ActsCode of Civil Procedure (CPC) - Order 22, Rule 9
AppellantNurul Hoda and ors.
RespondentAmir Hasan and anr.
Appellant AdvocateP.K. Das and ;Jayanta Mitra, Advs.
Respondent AdvocateB.K. Ghose, ;P.K. Roy and ;P. Khastgir, Advs.
DispositionAppeal dismissed
Cases ReferredGajanan v. Brindaban
Excerpt:
- sabyasachi mukharji, j.1. on 16th february, 1945 suit no. 260 of 1945 was tiled by the plaintiff, inter-alia for a declaration that the partnership business of haji qudabux mohammed ibrahim stood dissolved on and from 16th february, 1945, in the alternative, for dissolution of the said partnership, for appointment of receiver, accounts, enquiries, injunction and other reliefs. messrs. n. c. bural & pyne were the solicitors for the plaintiff at the time of the filing of this suit on 6th of march, 1945 by an order in the said suit, the defendant. zahir hasan was appointed receiver over the said partnership business. on 29th march. 1945 another suit being suit no. 507 of 1945 was filed by nurul hasan against his mother, brothers and sisters, inter alia, for partition and allotment in.....
Judgment:

Sabyasachi Mukharji, J.

1. On 16th February, 1945 suit No. 260 of 1945 was tiled by the plaintiff, inter-alia for a declaration that the partnership business of Haji Qudabux Mohammed Ibrahim stood dissolved on and from 16th February, 1945, in the alternative, for dissolution of the said partnership, for appointment of Receiver, accounts, enquiries, injunction and other reliefs. Messrs. N. C. Bural & Pyne were the Solicitors for the plaintiff at the time of the filing of this suit On 6th of March, 1945 by an order in the said suit, the defendant. Zahir Hasan was appointed Receiver over the said partnership business. On 29th March. 1945 another suit being suit No. 507 of 1945 was filed by Nurul Hasan against his mother, brothers and sisters, inter alia, for partition and allotment in severalty of the properties and estates of Shaik Mohammed Ibrahim, since deceased. On 22nd May, 1945 by an order in suit No. 507 of 1945, Mr. P. K. Sen, Barrister-at-Law was appointed Receiver of the estate and effects left by Shaik Mohammed Ibrahim, since deceased, including the said business and Zahir Hasan was thus discharged from further acting as Receiver of the said partnership firm. On 30th August, 1960 M/s. Pyne & Pyne became the plaintiff's Solicitors on dissolution of M/s. N. C. Bural & Pvne. On 23rd August 1961 in suit No. 507 of 1945 the plaintiff obtained change from Messrs Pyne & Pyne to Messrs. P. D. Himatsinka & Co. On 27th of September, 1961 when Mallick, J. was delivering judgment in suit No. 507 of 1945. Amir Hasan submitted certain alleged terms of settlement for being recorded, thereupon the learned Judge was pleased to adjourn delivering judgment to enable the said Amir Hasan to make application in the said suit for recording the terms of settlement. On 18th of April. 1962 the application made by Amir Hasan for recording the alleged terms of settlement was dismissed. On 11th May, 1962 Mallick. J. delivered the judgment in suit No. 507 of 1945, inter alia, declaring the shares of the sons and daughters of Sheik Mohammed Ibrahim, since deceased, in the estate of the said deceased and directing a reference to ascertain the estate and effects of Sk. Mohammed Ibrahim. On 7th December, 1962 Nurul Hasan being defendant in suit No. 260 of 1945, died. Some time thereafter the plaintiff applied for and obtained an order of substitution dated 11th March, 1963 in appeal proceeding arising out of suit No. 507 of 1945. By 7th March 1963, time to make application for substitution of the heirs of the deceased, defendant No. 1. expired. On 23rd March. 1963 the plaintiff instructed Messrs. P. D. Himatsinka & Co. to obtain change from Messrs. Pyne & Pyne. On 3rd April. 1963 Messrs. P. D. Himatsinka & Co. sent a Warrant of Attorney for consent signature of Messrs. Pyne & Pyne. On 5th April. 1963, Messrs. P. D. Himatsinka & Co. received back the said Warrant from Messrs. Pyne & Pyne with their consent signature. On 11th April, 1963 cause papers relating to the above suit were sent by Messrs. Pyne & Pyne to Messrs. P. D. Himatsinka & Co. On 6th of May, 1963 summons was taken out for the present application. On 27th June. 1963 an order was passed by A. N. Ray. J. setting aside the abatement, recording the death of Nurul Hasan and ordering amendment of the plaint by substitution of the names of the heirs and legal representatives of Nurul Hasan in the cause title of the plaint. The learned Judge did not give any reason in the order. On 29th April 1964 appeal No. 112 of 1964 was filed against the said order of A. N. Ray. J. dated 27th June 1963. The said appeal came up for hearing before a Division Bench of this Court consisting of Sinha. J. (as his Lordship then was) and A. C. Sen, J. A preliminary point arose in the said appeal, namely, whether an appeal lay against an order setting aside an abatement under Order 22. Rule 9 of the Code of Civil Procedure. In view of the conflict of decisions of this Court. Sinha J. felt that this was a matter which should be decided by a Full Bench. In the premises under Chapter XXXI-A. Rule 1 of the Original Side of this Court, the appeal has been referred to this Full Bench.

2. Under the Code of Civil Procedure read with the Limitation Act by 7th March. 1963 the suit had abated against the deceased defendant. The plaintiff had 60 days from that date to make an application for setting aside the abatement by making out sufficient cause. The plaintiff had applied in time for setting aside the abatement in this case. It is, however, disputed that, he had made out sufficient cause. That is a contention on the merits. The trial Court has set aside the abatement. The short question is does an appeal lie from such an order There is no dispute that under the Code there is no appeal provided. Clause 15 of the Letters Patent, 1865 provides appeal from 'judgment'. The question therefore, is can the order of the trial Judge in this case be described as 'judgment' in terms of Clause 15 of the Letters Patent of 1865?

3. Inumerable decisions were cited at the Bar. dealing with the question Whether a particular order is a 'judgment' or not. It is not necessary to deal or discuss all of them here. Sometimes experience, sometimes logic has led the courts to take one or the other view. It will, however, be necessary to deal with three Supreme Court decisions, two of which deal with the meaning of the expression 'judgment' in clauses of the Letters Patent of the High Courts and the other with the question of the nature of the order setting aside abatement. Counsel for the appellant relied very strongly on the decision of the Supreme Court in the case of Asrumati Devi v. Kumar Rupendra Deb, : [1953]4SCR1159 There the Supreme Court was considering the question whether an order for transfer of a suit under Clause 13 of the Letters Patent, is a 'judgment' within the meaning of Clause 15. By Clause 13 of the said Letters Patent the High Court had power to remove certain suits pending in courts within its jurisdiction to the High Court. It was held by the Supreme Court that such an order neither affected the merits of the controversy between the parties in the suit itself, nor did it terminate or dispose of the suit on any ground. An order for transfer, it was further observed, could not be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground.

4. Under Clause 12 of the Letters Patent the High Court has jurisdiction to grant leave to file suit in the High Court, if part of the cause of action arises within the jurisdiction of the High Court. The High Court has right to revoke or rescind the leave granted. The Supreme Court held that there was a difference between an order refusing to rescind leave granted under Clause 12 of the Letters Patent and the one under Clause 13 directing the removal of a suit from one Court to another, and there was no good reason to hold that the principle applicable to one applied to the other also. The meaning of the expression 'judgment' was construed in the case of Justice of the Peace for Calcutta v. Oriental Gas Co.. 8 Bens LR 433, and the Supreme Court in the aforesaid case of : [1953]4SCR1159 (supra) quoted the observations of the Chief Justice Sir Richard Couch to the following effect :

'We think that '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, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined'. The Supreme Court also discussed several authorities. At page 200 of the report, the Supreme Court observed 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 certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. 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 or 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'.

The Supreme Court indicated that the Supreme Court was not giving an exhaustive definition of the word 'judgment'.

5. The question, therefore, is does not the order of the learned trial judge in this case involve determination of some right or liability though such determination may not be a decision on the merits. In this case, the merits of the controversy in the suit remain unaffected by the order in question. The order in question, however, affects the right of the plaintiff to proceed with the suit. The controversy in the suit and the points in dispute therein remain unaffected by the order in question. No right or liability of the party in respect of the points in dispute in the suit are touched by the order setting aside the abatement. Counsel for the appellant, however, contended that the order in question affected the plaintiff's right to proceed with the suit end the defendant's right to stop further prosecution of the suit. So far as the controversy whether the suit had abated or not had been finally adjudicated by the said order. Therefore, it was contended, that the order in question was a 'judgment' because it was the final pronouncement which had put an end to the application for setting aside the abatement and involved determination of the right of the defendants to stop prosecution of the suit any further. Before the question is further examined, it is necessary to refer to another decision of the Supreme Court upon which reliance was placed, namely, the decision in the case of Radhey Shyam v. Shyam Behari Singh, : [1971]1SCR783 There the Supreme Court was considering Clause 10 of the Letters Patent of the Allahabad High Court, which was similarly worded. The respondent in that case had obtained a decree for Rs. 9,000/-. In execution proceedings taken out by him, the appellant's one fourth share in a house was put up for sale and a proclamation setting out the date and hour when the sale would be held was duly issued. The sale, however, was postponed to July 30, 1956 at the instance of the appellant and on his offering to pay a part of the decretal amount. At the auction sale held on the adjourned date the respondent himself purchased the said one fourth share of the appellant for Rs. 8,000/-. The appellant filed an application for setting aside that sale under Order XXI. Rule 90 of the Code of Civil Procedure on the ground that contrary to the provisions of Rule 69 of that Order, the notice relating to the adjourned auction sale did not set out the hour when the auction would be held though the original proclamation under which the auction sale was to be held on the earlier date specified both the hour and the date. The appellant contended that the failure to mention the hour contravened Order XXI, Rule 69 and that such a contravention was a material irregularity which vitiated the sale. The objection was overruled by the execution Court. The appellant thereupon filed an appeal in the High Court where a learned single Judge upheld the objection holding that the failure to set out the hour amounted to a material irregularity, in consequence whereof the appellant had been prejudicated by the sale having fetched too low a value. On this finding the learned Judge allowed the appeal and set aside the auction sale. Aggrieved by the said order, the respondent filed a Letters Patent Appeal under Clause 10 of the Letters Patent of the Allahabad Hihh Court. A Division Bench, of the High Court reversed the order passed by the learned single Judge and allowed the appeal. Following the Full Bench decision of that High Court in. Standard Glass Beads Factory v. Shri Dhar, : AIR1960All692 the division bench rejected the appellant's contention that no Letters Patent Appeal lay against such an order and held that the order of the learned single Judge was a 'judgment' within the meaning of the Clause 10 of the Letters Patent. The Supreme Court held that an order in a proceeding under Order XXI, Rule 90, was a 'judgment' inasmuch as such a proceeding raised a controversy between the parties therein effecting their valuable rights and the order allowing the application certainly deprived the purchaser of the right accrued to him as a result of the auction-sale. Therefore, appeal under Clause 10 lay from en order of a Single Judge of the High Court in an appeal from an order of an execution Court on an application under Order 21, Rule 90. After referring to the decision and the observations in the case of : [1953]4SCR1159 the Supreme Court observed at page 2339 of the report as follows:--

'It will be noticed that the order In question was on an application in the suit as a step-in-aid towards the determination of the controversy between the parties in the suit. It was therefore, that the said observation was made that the order sought to be appealed against did not affect the merits of the controversy in the suit nor did it terminate or dispose of the suit. 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 Justice 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'.

6. The other decision of the Supreme Court to which reference need be made is the decision in the case of Union of India v. Ram Charan, : [1964]3SCR467 of the report Raghubar Dayal, J. observed as follows:--

'Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time, need not be overstrict in expecting such proof of the suggested cause as it would accept for holding certain facts established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance'.

7. It is not necessary for us to lay down any exhaustive definition of the expression 'judgment'. But it appears from the aforesaid decisions and the subsequent decisions to be referred hereafter that the following tests should be applied in considering whether a particular order amounts to a 'judgment' or not, namely, (i) whether the order in question puts an end to the proceeding so far as the Court dealing with it is concerned, in which the order was sought and made, (ii) the order must involve determination of some right or liability affecting the merits. (iii) an adjudication or a decision, which is not anything more than a step towards obtaining the final adjudication on the merits of the dispute in the proceeding is not judgment within the meaning of Letters Patent, (iv) where the decision involves adjudication on the question of limitation or jurisdiction of the Court, in certain cases, such decisions would amount to judgment. It is necessary to examine how far the aforesaid tests can be applied to the order in question, namely, an order setting aside the abatement In this connection we must bear in mind the observations of Raghubar Dayal, J. mentioned hereinbefore in the case of : [1964]3SCR467 that an order setting aside an abatement does not relate to the merits of the dispute. It is certainly a decision which affects the proceedings of the dispute but it is not a decision which affects the merits of the dispute, though the order in question puts an end to the particular application in which the order was sought for and obtained. In the aforesaid view of the matter we are of the opinion that it cannot be said that an order setting aside an abatement is a 'judgment' within the meaning of Clause 15 of the Letters Patent of the High Court.

8. There are decisions of the Allahabad, Bombay. Rajasthan, Punjab and Manipur High Courts holding the view that order setting aside abatement is not 'judgment' within the meaning of Letters Patent. We need not refer to the said decisions which were cited at the Bar. In Calcutta High Court, however, there has been a contrary trend. In the case of Sarat Chandra Sarkar v. Maihar Stone & Lime Co. Ltd.. AIR 1922 Cal 335 the Division Bench of this Court held that an order setting aside an abatement was a 'judgment' within the meaning of Clause 15 of the Letters Patent and was therefore appealable. Reliance was placed for this on an unreported decision in Appeal No. 16 of 1918 dated 19th of June, 1918. Richardson, J. observed that setting aside of the abatement deprived the party in whose favour the abatement operated of a valuable right, and that was why it was considered as a judgment. Apart from what has been mentioned hereinbefore no other reasons were indicated why an order setting aside abatement should be considered as a 'judgment'. It is true that an order setting aside abatement affects valuable rights and affects the proceedings of the dispute but it does not affect the merits of the dispute. Therefore, though the order affects valuable rights of the Parties and should not be lightly made, it cannot, in our opinion, be considered 'judgment' on that ground. In the case of Mohamed Nuru Amin v. Monohar Saran Deb Mohanta, AIR 1925 Cal 473. it was on the other hand held by the Division Bench of this Court that no appeal lies. In the case of Naimuddin Biswas y. Maniruddin Laskar. AIR 1928 Cal 184, it was held by the Division Bench of this Court that an order of abatement by virtue of the death of the party was virtually a decree as it disposed of the plaintiff's claim as completely as if the suit had been dismissed. Mallick, J. observed in the said judgment that the order of abatement operated as a judgment as between the parties to the same extent as a judgment on merits. The case of Shorab Merwanji Modi v. Mansata Film Distributors, : AIR1957Cal727 dealt with different question. It was held that an order refusing to stay a suit under Section 10 of the Civil P. C., was a 'judgment' within the meaning of Clause 15 of the Letters Patent. It was held that where a question of the jurisdiction of the Court to entertain or proceed with a suit or proceeding was involved and a decision on that question was given, such decision affected the merits of the controversy between the parties. We are in this case not concerned with that question. It may be that where questions of jurisdiction or of limitation arise, decisions may be 'judgments' in certain circumstances. In the instant case, counsel for the appellant, contended that the order in this case also involved a question of jurisdiction. We are unable to agree. The learned trial Judge undoubtedly had jurisdiction to make an order setting aside the abatement or refusing to set aside the abatement. A decision setting aside an abatement or refusing to set aside the abatement upon a particular view whether sufficient cause had been made out or not does not involve any question of jurisdiction. The learned trial Judge might have been right or might have been wrong in his valuation of the facts and on his conclusion as to whether sufficient cause had been made out or not He had the jurisdiction to decide either way namely, whether sufficient cause had been made out or not and a decision either way, right or wrong, is not a decision on the question of the jurisdiction of the Court. We are, therefore, unable to accept the position that in this case any question of jurisdiction of the Court was involved. Similarly, where questions of limitation or res judicata are involved decisions in respect of the same may, in certain circumstances be 'judgments'. It was so held in the case of Central Bank of India v. S. B. Hosiery Ltd., (1966) 70 Cal WN 670 In the case of Md. Felumeah v. S. Mandal. : AIR1960Cal582 it was held that an order varying interim order was a 'judgment' within the meaning of the Letters Patent. We are again not concerned with this question. We do not express any opinion in respect of the same. Counsel for the appellant further contended that question of limitation was involved in the instant case, because by the lapse of time and due to the conduct of the plaintiff a right had accrued to the defendant which was being affected by the order in question. We are unable to accept the contention that the order in question, involved any question of limitation as such. Under tile law of limitation time has been provided for making an application for bringing the heirs of the deceased defendant on record and time again has been provided for setting aside of the abatement by the Court on sufficient cause being shown. If in a particular case, a Court sets aside abatement it does not in our opinion, in any way affect any right accrued to the defendant by virtue of the law of limitation.

9. In the case of Laxminarayan Tamkorwalla v. Udairam Khemka : AIR1961Cal386 , the Division Bench of this Court had occasion to consider some of the decisions referred to hereinbefore. The Division Bench felt that according to the Supreme Court in the case of : [1953]4SCR1159 any order to be 'judgment' the adjudication need not be on the merits of the controversy between the parties, but it must be a decision affecting the merits of the case. The Division Bench was concerned with an order under Rule 5. Order 9 of the Code of Civil Procedure with which we are not concerned in the instant case. In the case of T. Bhagwandas v. Sitaram Srigopal, : AIR1959Cal389 the Division Bench held that an order setting aside a decree and restoring suit to file was not a 'judgment' and therefore not appealable. Such an order decided nothing as to the merits in controversy between the parties but merely reopened the controversy. In the case of Sm. Tara Nevatia v. S. C. Dhur. (1963) 67 Cal WN 18 the Division Bench of this Court following the decision in the case of AIR 1922 Cal 335 (supra) and the decision in the case of : AIR1961Cal386 held that an order setting aside an abatement of a suit was a 'judgment' under Clause 15 of the Letters Patent. The Division Bench did not give any independent reason.

10. For the reasons indicated hereinbefore we are of the opinion that the Calcutta decisions, so far as they have held that order setting aside abatement is a 'judgment' under Clause 15 of the Letters Patent, are not correct and an order setting aside abatement is not a 'judgment', as it does not relate to the merits of the dispute, but only a step towards final adjudication of the dispute and as such is not a 'judgment' within the meaning of Clause 15 of the Letters Patent.

11. Counsel for the appellant contended that we should not disturb the decisions of the Division Benches of this Court which had held that such orders were appealable Counsel contended that a rule of procedure which had been established should not be departed from. Reliance was placed upon a decision of the Judicial Committee in the case of Brij Inder Singh v. Kanshi Ram, 44 Ind App 218 = (AIR 1917 PC 156) and on the observations at page 225 of the report. There, however, the Judicial Committee observed that a rule of procedure which had been laid down by the Full Benches in all the Courts of India and had been acted upon for many years, should not be departed from. Reliance was also placed on the decision of the Supreme Court in the case of Gajanan v. Brindaban, : [1971]1SCR657 where the Supreme Court had observed that the view which had been accepted for a long time by the highest Court and stood for a long period of time, should not be interfered with because many transactions both in respect of property and contracts had taken place upon the basis of the said decision. It is true that if a decision has stood the test of time and which has been laid down by the highest Court, and according to which people had adjusted their affairs, should not be departed from. But in this case, as we have noticed before, there has been wide divergence of opinion between the different High Courts in this country. As a matter of fact several High Courts in India as indicated before have taken a view that such an order was not a 'judgment' within the meaning of the Letters Patent while in many of the decisions of the Calcutta High Court a contrary view had prevailed. It however appears that as early as 1925 a different view was expressed by a Division Bench of this Court, and doubts have arisen on this question from time to time. There has been yet no Full Bench pronouncement on this question, and though the rule of procedure might affect some pending appeals it would not affect any transaction. In the aforesaid view of the matter and in view of the tests indicated by the Supreme Court we are unable to accept the position, that we should not differ from the said decisions of the Division Benches on this point.

12. In the aforesaid view of the matter we are of the opinion that no appeal lies.

13. Counsel for the appellant contended before us that in this case no sufficient cause had been made out why abatement should be set aside. Counsel also drew our attention to several decisions dealing with the question of sufficient cause. Counsel also placed reliance upon several decisions dealing with the question that the application for setting aside should explain the delay and the conduct of the applicant. In the view we have taken on the other aspect of the matter that no appeal lies, it is not necessary for us to discuss this aspect of the matter. We are however, constrained to observe that the cause indicated in the affidavit does not seem to be very convincing. As mentioned hereinbefore, the learned trial Judge did not indicate any reason. The Supreme Court in the case of : [1964]3SCR467 had observed that the Court in considering whether an applicant had established sufficient cause though need not be overstrict, should, nevertheless, carefully examine the question whether sufficient cause was made out or not. However, it appears that in this case parties were disputing for a long long time. It further appears that there were several litigations. It is also clear that there was a change of Attorney. In those circumstances in respect of other matters it has been mentioned that there were applications for substitution. Obviously this application had not been made because as the applicant had said that he had forgotten about the same. Though it is not a very convincing proof of the sufficiency of the cause for setting aside an abatement but if in the background of the facts of this case the learned trial Judge had thought it fit to set aside the abatement it should not be interfered with in the appeal. However, this question need not be pursued any further in view of our conclusion on the first question, that is to say no appeal lies from an order setting aside the abatement.

14. In the aforesaid view of the matter this appeal fails and is accordingly dismissed. The costs of this appeal and of this reference to this Full Bench would be costs in the suit.

Arun K. Mukherjea, J.

15. I agree.

M.M. Dutt, J.

16. I agree.


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