Citation Codes

Equivalent Citations

citation codes

Case Number

Suit No. 255 of 1938 and A.F.O.O No. 131 of 1959

Attorney(S)

E.R. Meyer
R.C. Deb

Judges

S.C Lahiri, C.J
H.K Bose, J.

Acts

Rule Nisi under Article 226 of the Constitution.
Order 12 Rule 6 of the CPC
Order 9 Rule 5

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Smart Summary

Structured Summary of the Opinion delivered by Lahiri, C.J.

Factual and Procedural Background

The plaintiff (respondent) instituted a suit on 9 February 1938 seeking, inter alia, a declaration that a partnership (of which the appellant’s father was alleged to be a partner) stood dissolved with effect from 12 April 1935. There were three defendants; the appellant’s father was the third. The suit remained pending for long periods. On 10 May 1949 the death of the appellant’s father was recorded and the appellant was substituted as the third defendant; the Court ordered issue of a fresh writ of summons (returnable two months from signing) and directed the Sheriff to receive the writ within a fortnight.

A writ was issued on 3 September 1949 and lodged with the Sheriff shortly afterwards; the Sheriff handed it to a bailiff named Rahim on 7 September 1949. The writ’s returnable date expired on 19 September 1949. Thereafter the suit intermittently “went underground” for years: it remained undisposed of for long spells, appeared on peremptory lists in January, April and July 1954 and again on 15 April 1958, but much else is not recorded in the materials.

On 17 May 1958 the plaintiff applied (without serving notice on the appellant) for the issue of a duplicate writ of summons in terms of the 10 May 1949 order and for a direction that the Sheriff receive such writ within fourteen days of the order. The plaintiff explained delay by reference to his prior attorneys (Messrs Khaitan & Co.) allegedly failing to inform him that the original writ had not been returned and that the bailiff went to Pakistan; he changed attorneys to Messrs Nahar & Dutta. The duplicate-writ application was granted on 3 June 1958 without notice to the appellant. The duplicate writ was served on the appellant on 4 July 1958. The appellant filed a written statement on 1 August 1958 reserving rights and contending the suit should be dismissed as against him and that there was no valid ground for issuing the duplicate writ.

On 5 December 1958 the appellant applied to set aside the 3 June 1958 order. That application was dismissed by Sankar Prasad Mitra, J. by order dated 18 March 1959. The appellant appealed. The respondent raised a preliminary objection that the order appealed from was not a “judgment” within the meaning of Clause 15 of the Letters Patent and therefore the appeal was not maintainable.

Legal Issues Presented

Whether the order of 3 June 1958 (directing issue of a duplicate writ of summons and directing the Sheriff to receive it within fourteen days) is a "judgment" within the meaning of Clause 15 of the Letters Patent and therefore appealable.
Whether the order in question constituted an adjudication of some right or liability affecting the merits of the case, or whether it was merely a procedural step towards final adjudication.

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

Mr. Meyer for the appellant argued that the 3 June 1958 order was an adjudication of a right of the appellant because it destroyed an immunity the appellant allegedly enjoyed prior to that order — in particular, an alleged right to immediate termination of the suit as against him.
Counsel for the appellant relied on several precedents (discussed below) to support the proposition that certain interlocutory orders which alter substantive rights or forum or deprive a party of a substantial right are "judgments" under Cl. 15.

Respondent's Arguments (as presented in the opinion)

The respondent (and Mr. Deb appearing for respondent) took the preliminary point that the order appealed from is not a "judgment" within the meaning of Clause 15 of the Letters Patent and therefore the appeal is not maintainable.
It was argued (according to the record) that the Supreme Court's decision in Asrumati Debi v. Rupendra Deb supports the narrower interpretation that a "judgment" requires determination of some right or liability affecting the merits (even if not deciding merits themselves), such that mere procedural orders are not judgments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this case
Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd., 8 Beng LR 433	Sir Richard Couch C.J.'s test: to be a "judgment" within Cl. 15 an adjudication must be "a decision which affects the merits of the question between the parties by determining some right or liability."	The Court quoted this as the classical test and then considered its interpretation in light of later authorities; it accepted the test as requiring determination of some right or liability affecting the merits.
Tuljaram Row v. Alagappa Chettiar, ILR 35 Mad 1 (Full Bench)	The Madras Full Bench view that it is not necessary that the decision must affect the merits of the suit; the definition is broader in scope.	The Court noted the Madras view and, following later authorities, treated it as a variant of the Calcutta view once reconciled — i.e., the adjudication must involve determination of some right or liability though not necessarily a decision on the merits.
Asrumati Debi v. Rupendra Deb, 1953 SCR 1159 : AIR 1953 SC 198	The Supreme Court reconciled the Calcutta and Madras views: a "judgment" must involve determination of some right or liability affecting the merits, though it need not be a decision on the full merits.	The Court relied on this reconciliation as authoritative guidance: the present order had to be judged by whether it determined some right or liability affecting the merits; the Court ultimately found it did not.
Shorab Merwanji Modi v. Mansata Film Distributors, 61 Cal WN 559 : AIR 1957 Cal 727	Followed the reconciled view; described the Madras view as a variant of the Calcutta view.	The Court noted this decision as following the reconciled approach, but did not rely on it to alter the ultimate conclusion that the 3 June 1958 order was procedural.
Koramall Rambullobh v. Mungilal Dalimchand, 23 Cal WN 1017 : AIR 1920 Cal 163	An order dismissing an application for judgment on admission was held to be a "judgment" under Cl. 15 because it deprived the plaintiff of a valuable right under Order 12 Rule 6 CPC.	The Court distinguished Koramall's case: here there is no statutory right akin to Order 12 Rule 6 for a defendant to have the suit dismissed for delay in service (unless Order 9 Rule 5 applies), and Order 9 Rule 5 was held in the trial Judge's finding not to apply.
Levy Brothers & Knowles Ltd. v. Subodh Kumar Day, 31 Cal WN 894 : AIR 1927 Cal 689	Held that an order refusing a creditor's claim in liquidation and relegating him to a suit deprived the creditor of a substantial right and therefore was a "judgment" under Cl. 15.	The Court observed that this precedent shows an order that alters the forum or deprives a party of a substantial right is a judgment. It found that the present order does not have that effect and so the precedent does not assist the appellant.
Sarat Chandra Sarkar v. Maihar Stone and Lime Co. Ltd., ILR 49 Cal 62 : AIR 1922 Cal 335	Order setting aside an abatement of a suit is a "judgment" because abatement results effectively in dismissal as against a particular defendant; setting aside abatement affects the merits.	The Court distinguished this: setting aside abatement has an inevitable result on dismissal as against a defendant, whereas the present order directing issuance of a duplicate writ was procedural and did not itself determine any right affecting the merits.
Mohammad Felumeah v. S. Mondal, 64 Cal WN 861 : AIR 1960 Cal 582	Modification of an interim injunction (when the injunction's subject-matter is the same as that of the Rule Nisi) was regarded as touching the merits and therefore appealable.	The Court found the facts materially different and held that Felumeah's case did not support the appellant's contention that the instant order was a "judgment" under Cl. 15.

Court's Reasoning and Analysis

The Court addressed first the preliminary objection that the order appealed from was not a "judgment" within Clause 15 of the Letters Patent and therefore the appeal was not maintainable. The Court reviewed the authorities about the meaning of "judgment" under Cl. 15: Sir Richard Couch C.J.'s test from Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd. that a judgment must affect the merits by determining some right or liability; the Madras Full Bench's apparently wider view; and the Supreme Court's reconciliation in Asrumati Debi v. Rupendra Deb that the two views are reconcilable — the central requirement being determination of some right or liability affecting the merits, even if the decision is not on the full merits.

Framing the decisive inquiry, the Court asked whether Sankar Prasad Mitra, J.'s order of 3 June 1958 was an adjudication of some right or liability affecting the merits or merely a procedural step towards final adjudication. The appellant's main contention (advanced by Mr. Meyer) was that the order destroyed an immunity the appellant allegedly enjoyed and thereby deprived him of a right to immediate termination of the suit as against him.

The Court rejected that contention for the following reasons (all drawn from the trial Judge's findings and the record):

The learned trial Judge found that Order 9 Rule 5 CPC had no application because the original writ of summons was not returned as served but had been lost. That finding was not challenged on appeal.
Because Order 9 Rule 5 did not apply, there was no statutory basis for concluding that the appellant enjoyed any immunity from a decree being passed against him. From the time he was substituted (1949) the appellant remained a party and therefore was liable to be subject to decree until the 3 June 1958 order; he had no right at any point between 1949 and 1958 to have the suit terminated as against him on the grounds relied upon.
Consequently, the 3 June 1958 order directing issue of a duplicate writ was not an adjudication of any right or liability affecting the merits; it was a step in procedure — a direction regulating process to obtain adjudication.

The Court then examined the cases cited by Mr. Meyer and explained why they were distinguishable: where the interlocutory order deprives a party of a substantive right, changes forum, or has the inevitable effect of dismissal as against a defendant, it has been treated as a "judgment" under Cl. 15; those precedents were therefore inapplicable because the instant order did not alter forum, deprive the appellant of any recognized statutory right, or have the inevitable effect of deciding the merits as against him.

On this basis the Court held that the preliminary objection must prevail and that the appeal was not maintainable. The Court therefore dismissed the appeal on that ground alone.

Separately from the preliminary question, the Court expressed strong disapproval of the plaintiff's conduct and the long dilatory history of the suit. The Court noted the plaintiff's failure to bring the suit to trial with reasonable diligence and observed the prejudicial effect of the delay upon the appellant. For these reasons the Court ordered that the plaintiff respondent pay the appellant's costs of and incidental to the appeal and certified the case for two counsel.

Holding and Implications

Holding:
APPEAL DISMISSED. The Court held that the order dated 3 June 1958 directing the issue of a duplicate writ of summons was not a "judgment" within the meaning of Clause 15 of the Letters Patent because it did not adjudicate any right or liability affecting the merits but was merely a procedural step towards final adjudication.

Direct Consequences and Implications:

The appeal was dismissed on the preliminary ground that the order appealed from is not appealable under Cl. 15.
The plaintiff (respondent) was directed to pay the costs of the appellant in respect of the appeal and the record was certified for two counsel.
The decision was confined to the question of appealability of the interlocutory order; the Court expressly distinguished earlier decisions where interlocutory orders deprived parties of substantive rights or altered forum, and it did not treat the present case as creating any wider precedent beyond applying the established test for "judgment" under Cl. 15.
No new substantive legal principle was laid down beyond the application of the reconciled test that a "judgment" must determine some right or liability affecting the merits; the Court found the order in question did not meet that threshold.

Disposition: Appeal dismissed. Costs awarded to appellant. Certified for two counsel.

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Laxminarayan Tamkorwalla v. Udairam Khemka And Others

The Judgment of the Court was delivered by

Lahiri, C.J:— 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, 1938 by which the duplicate writ of summons was ordered to be issued upon him. This application was dismissed by flip learned Judge by an order dated the 18th March, 1959 and the appellant has filed this appeal against that order. 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 CL 15 of the Letters Patent. What is or is not a judgment within the meaning of Cl. 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 Cl. 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 Calcutta, 8 Beng LR 433. In Asrumati Debi v. Rupendra Deb, 1953 SCR 1159 : (AIR 1953 SC 198) 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 Cl. 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 of 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 Cont to which reference has been made (ILR 35 Mad 1)”.

3. 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 : (AIR 1957 Cal 727) 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 SCR 1159 : (AIR 1953 SC 198) 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 SCR 1159 : (AIR 1953 SC 198) by holding that in order to be a judgment within the meaning of Cl. 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 mere than a step towards obtaining a final adjudication in the suit, is not a judgment within the meaning of Cl. 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 his instead of being compelled to go through the gamut of a suit on the original side and tills 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 1958 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 Cl. 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 CPC 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 Cl. 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 Cl. 15 of the Letters Patent”.

7. This passage clearly shows that an Older 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.

8. 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 Cl. 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 Cl. 15 of the Letters Patent.

9. Reliance was also placed upon a very recent decision of this Court in the case of Mohammad Felumeah v. S. Mondal, 64 Cal WN 861 : (AIR 1960 Cal 582) 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 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 Cl. 15 of the Letters Patent.

10. 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 Cl. 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.

11. 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 occasions in the year 1954 and it also appeared on one occasion on the peremptory list on the 15th April, 1958.

12. 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.

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

14. Certified for two Counsel.

Bose, J.:— I agree.

CE/V.S.B

15. Appeal dismissed.

Laxminarayan Tamkorwalla v. Udairam Khemka And Others

Structured Summary of the Opinion delivered by Lahiri, C.J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

Respondent's Arguments (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Laxminarayan Tamkorwalla v. Udairam Khemka And Others

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