Vaijayantappa Shirasappa Ijari v. Anasuya, Bombay High Court, Judgment, Law, casemine.com

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Case Number

Appeal No. 18 of 1938 under the Letters Patent

Advocates

S.H Belavdi, for R.A Jahagirdar, Government Pleader, for the appellants.
V.G Wagle, for the respondents.

Judges

Mr. Wassoodew
Mr. Indarnarayen, JJ.

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Smart Summary

Factual and Procedural Background

This opinion arises from a preliminary objection taken by the respondents' advocate to an appeal against an order of Mr. Justice Divatia excusing the delay in filing First Appeal No. 184 of 1938 in this Court. The narrow procedural question was whether the order excusing delay (granting leave to proceed with the appeal despite the delay) is a "judgment" within the meaning of clause 15 of the Letters Patent and therefore appealable to this Court. The respondents argued the order was merely procedural and not a judgment; the appellants contended that the order deprived them of a substantive right accrued by delay and so was a judgment. The Court heard authorities and argument and ultimately dismissed the appeal, upholding the preliminary objection and awarding costs against the appellants.

Legal Issues Presented

Whether an order excusing delay in filing an appeal (here, the order of Divatia J. excusing delay in First Appeal No. 184 of 1938) is a "judgment" within the meaning of clause 15 of the Letters Patent and therefore appealable to this Court.
Whether an order that restores an appeal or proceeding to an appealable condition (as opposed to an order that debarres a party from proceeding) affects the merits or determines rights or liabilities so as to qualify as a "judgment" under cl. 15.
Whether an order made in an independent or ancillary proceeding (e.g., an application to excuse delay) can be treated as a "judgment" under cl. 15 where such an order is final in effect.

Arguments of the Parties

Respondents' Arguments

The order excusing delay is a preliminary procedural step regulating the appeal; it does not affect the merits of the case nor determine rights between the parties.
The order merely restores the appeal to an appealable condition and declares that the appellant is not debarred from appealing; it does not amount to a "judgment" under cl. 15 of the Letters Patent.

Appellants' Arguments

By the respondents' delay a substantial right had accrued to the appellants — specifically, the right to execute the decree without fear of it being challenged — and therefore the order which deprives them of that accrued right is a "judgment".
It was also contended (by Mr. Belavdi for the appellants) that proceedings to excuse delay are independent of the appeal and therefore an order finally determining such an independent proceeding should be treated as a "judgment" under cl. 15.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Miya Mahomed v. Zorabi (Scott, C.J.)	Referred to in connection with earlier decisions and interpretations of "judgment" under the Letters Patent.	Noted as referring to The Justices of the Peace for Calcutta and Hadjee Ismail as leading decisions; used to illustrate the line of authority adopting a restricted definition.
The Justices of the Peace for Calcutta v. The Oriental Gas Company (Couch C.J.)	Definition: "judgment" in cl. 15 means a decision which affects the merits of the question between the parties by determining some right or liability.	Regarded as a classical definition that the Court relies upon to distinguish judgments affecting merits from mere procedural orders.
Haddee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub	Example where an order refusing to set aside an order granting leave to sue under cl. 12 was not merely formal and had the effect of giving jurisdiction.	Referred to as supporting the proposition that some interlocutory orders may amount to judgments when they confer jurisdiction or affect rights substantively.
Almeida v. Ramchandra Asavle	Referred to with approval with respect to interpretation of "judgment" under the Letters Patent.	Used as part of the chain of authorities supporting the restricted definition.
Ibrahimbhai Fazalbhai v. Yoosuf Ismailbhai	Referred for the proposition that certain interlocutory orders (e.g., varying date of sale) are not "judgments" under the clause.	Cited to support the view that not every interlocutory order affecting some right is appealable; the substance and importance of the order must be considered.
Tuljaram Row v. Alagappa Chettiar (White C.J.)	Test: an adjudication is a "judgment" if its effect is to put an end to the suit or proceeding so far as the Court is concerned, or if non-compliance would put an end to the suit; independent ancillary proceedings that finally determine rights (e.g., interim injunction or appointment of receiver) may be "judgments".	Described as a broader, practical working test which the opinion finds useful for determining "judgment" under cl. 15 and adopted as a good working test.
Jeranchod v. Dakore Temple Committee (Privy Council)	Observation that "judgment" in cl. 39 of the Letters Patent (1865) means, in civil cases, a decree, not a judgment in the ordinary sense — analogous to cl. 15.	Used to support the connotation of finality and decree-like quality required for a "judgment" under the Letters Patent.
Brajagopal Ray Burman v. Amar Chandra Bhattacharjee	Held that no appeal lay from an order excusing delay; an order allowing an appeal to be presented upon excuse of delay was not a "judgment".	Strongly relied upon; the Court (Wassoodew, J.) agrees with Rankin C.J.'s reasoning that merely putting in peril the finality of a decision does not make an order a "judgment".
Ananthanarayana Aiyar v. Rarichand	Madras High Court adopted view that an order excusing delay is not appealable under the Letters Patent.	Noted as adopting the Brajagopal approach; cited as supportive authority for non-appealability of orders excusing delay.
Ramchandra Gangadhar v. Mahadev Moreshvar	This Court took a different view in a case where an order refusing to enlarge time was said to be very drastic and therefore a "judgment".	Distinguished: the Court explains that where an order dismisses an appeal and debarres prosecution it may be a "judgment"; but that is different from an order excusing delay which allows proceedings to continue.
Gobinda Laldas v. Shibadas Chatterjee (Calcutta High Court)	Held no appeal lay from an order refusing to enlarge time for filing an appeal or an application (contrasted with Ramchandra Gangadhar decision).	Mentioned to show differing approaches in different Courts and to contrast cases where orders debar the right to proceed versus those that allow proceeding.
Sadashiv v. Soondardas	Example where an order refusing permission to sue in forma pauperis was held appealable.	Cited by appellants but Court distinguishes it: such cases involve orders that deprive a party of a statutory right and so may be treated as "judgments"; not inconsistent with the Court's view on excusing delay.

Court's Reasoning and Analysis

The Court framed the central inquiry as whether Divatia J.'s order (excusing delay in filing the appeal) was a "judgment" under cl. 15 of the Letters Patent. The analysis proceeded in several identifiable steps that track the authorities and the arguments:

Definition and tests: The Court surveyed divergent approaches to the meaning of "judgment" in the Letters Patent. It noted the classical, restricted definition from The Justices of the Peace for Calcutta v. The Oriental Gas Company (a decision which treats "judgment" as something that affects the merits by determining some right or liability), and a broader practical test from Tuljaram Row v. Alagappa Chettiar which focuses on the effect of an adjudication — whether it puts an end to the suit or proceeding before the Court (thereby giving it a decree-like finality).
Analogy to decrees: The Court relied on Jeranchod v. Dakore Temple Committee to draw an analogy that "judgment" in the Letters Patent has the connotation of a decree (i.e., a final decision in civil cases), reinforcing the finality criterion.
Review of authorities that directly address orders excusing delay: The Court examined decisions from other High Courts, most prominently Brajagopal Ray Burman v. Amar Chandra Bhattacharjee where a three-Judge Bench held that an order excusing delay (allowing an appeal to be presented upon excuse of delay) was not a judgment under a clause similar to cl. 15. Rankin C.J.'s reasoning — that merely putting the finality of an earlier decision in peril does not convert a procedural order into a "judgment" — was accepted with respect.
Distinguishing drastic orders that debar rights: The Court distinguished situations where an order effectively puts an end to an appeal or debarres a party from proceeding (for example, an order dismissing an appeal for want of prosecution), noting that such orders may be regarded as judgments because they deprive the party of a substantive statutory right. The Court cited Ramchandra Gangadhar (where this Court previously took a different view) to illustrate the distinction: when an order is "very drastic in effect" and debarres a party, it may be appealable.
Substance-over-form approach: Both judges emphasized examining the substance and practical effect of the order rather than its form. Indarnarayen, J. expressly equated "judgment" in cl. 15 to "decree" in the Civil Procedure Code and reiterated that interlocutory orders allowing proceedings to continue are not judgments; an appeal lies only from decisions that conclude the further progress of a suit or proceeding before the Court.
Application to the present order: Applying these principles, Wassoodew, J. concluded that Divatia J.'s order merely restored the appeal to a condition in which the rights of the parties could be finally adjudicated — it allowed the appeal to proceed rather than putting an end to it — and therefore was not a "judgment" within cl. 15. Indarnarayen, J. concurred, applying the same substance-over-form reasoning and the decreelike test of finality.

Holding and Implications

HOLDING: The Court upheld the preliminary objection and held that the order of Divatia J. excusing delay in filing the appeal was not a "judgment" within the meaning of clause 15 of the Letters Patent; accordingly, the appeal was dismissed with costs.

Implications:

The direct effect is the dismissal of the present appeal and an order that the appellants pay costs.
The Court's reasoning reinforces the distinction between interlocutory or procedural orders that allow proceedings to continue (which are not "judgments" under cl. 15) and orders that finally dispose of or debar rights (which may be treated as "judgments").
Although the opinion surveys and applies prior authorities, it does not purport to lay down a novel general rule beyond applying the established tests of finality and effect; the decision follows existing lines of authority and distinctions noted in earlier cases cited in the opinion.

Disposition recorded in the opinion: "Appeal dismissed." (Both judges concurred.)

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Vaijayantappa Shirasappa Ijari v. Anasuya

Wassoodew, J.:—

The question that arises upon the preliminary objection taken by the respondents' advocate to this appeal from the order of Mr. Justice Divatia excusing the delay in filing First Appeal No. 184 of 1938 in this Court, is whether that order is a “judgment” within the meaning of cl. 15 of the Letters Patent. The respondents contend that such an order is but a preliminary step regulating procedure in the appeal and does not affect the merits of the case nor does it determine the rights between the parties, and that what it determines is that the appellant is not debarred from appealing, as in the absence of such an order he might have been so debarred. In other words, it has been contended that inasmuch as it merely restores the appeal to an appealable condition, the order is not a “judgment” and therefore not appealable. On the other hand it is argued for the appellants that by the delay of the respondents a substantial right has accrued to the appellants in this appeal, namely the right to execute the decree without fear of its being challenged, and that therefore the order which deprives them of such a right is a judgment. The word “judgment” in cl. 15 of the Letters Patent has been variously interpreted by the Indian High Courts. In some it has received a restricted interpretation, whilst in others a liberal or a very wide one. Scott, C.J, in Miya Mahomed v. Zorabi, referring to the decisions in The Justices of the Peace for Calcutta v. The Oriental Gas Company and in Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub, observed that they have been regarded as leading decisions on this side of the country. In The Justices of the Peace for Calcutta case Couch C.J remarked (p. 452): “We think that ‘judgment’ in cl. 15 means a decision which affects the merits of the question between the parties by determining some right or liability”. The point actually decided was that no appeal lay under that clause from an order directing the issue of a mandamus to the Justices of the Peace at Calcutta to compel them to refer to arbitration a question of compensation. In the case of Hadjee Ismal, the same learned Judge observed that where there was an order refusing to set aside an order granting leave to sue to the plaintiff under cl. 12 of the Letters Patent, it was not a mere formal order or an order merely regulating the procedure in the suit, but one that had the effect of giving jurisdiction to the Court which it otherwise would not have. The definition in The Justices of the Peace for Calcutta v. The Oriental Gas Company, which has become classical, was referred to with approval in the more recent cases of Almeida v. Ramchandra Asavle and Ibrahimbhai Fazalbhai v. Yoosuf Ismailbhai.

It is interesting to note how the term “judgment” was interpreted by the Madras High Court. In Tuljaram Row v. Alagappa Chettiar White C.J laid down a test to determine what a judgment is (p. 7):—

“The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceedings, I think the adjudication is a ‘judgment’ within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a ‘judgment’ within the meaning of the Letters Patent.

I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) e.g, an order on an application for an interim injunction, or for the appointment of a receiver is a ‘judgment’ within the meaning of the clause.”

That is apparently a very much wider definition than the one given in The Justices of the Peace for Calcutta and in my opinion it is a good working test for determining what a “judgment” is under cl. 15 of the Letters Patent. The criterion of finality of the decision involved in the test gives it the connotation of a decree. In Jeranchod v. Dakore Temple Committee their Lordships of the Privy Council observed that the term “judgment” in cl. 39 of the Letters Patent, 1865, means, in civil cases, a decree, and not a judgment in the ordinary sense. Those provisions are analogous to the provisions of cl. 15.

The question therefore is whether the effect of the order of Divatia J. is to put an end finally to the appeal or proceeding so far as this Court is concerned, or whether the order affects the merits of the proceeding by determining some right or liability. There is no direct authority of this Court on the point. But the matter has come up for decision before the other High Courts. In Brajagopal Ray Burman v. Amar Chandra Bhattacharjee, where a similar question arose, a Bench of three Judges held that no appeal lay from an order excusing delay. There a second appeal was presented out of time, and a rule was obtained by the appellants against the opponents to show cause why the appeal should not be registered. The two Judges composing the bench who heard the rule differed in opinion. The rule was made absolute in accordance with the opinion of the senior Judge. An appeal was taken from that order under cl. 15 of the Letters Patent (which is exactly similar to cl. 15 of the Letters Patent of the Bombay High Court), and it was held that the order allowing second appeal to be presented upon the excuse of delay in filing it was not a judgment. Rankin C.J in delivering the judgment observed as follow's (p. 144):—

“On the whole, and not without some doubt, I think that the mere circumstance that an order puts in peril the finality of a decision given in the respondent's favour, does not of itself make that order a ‘judgment’ within the meaning of cl. 15 of the Letters Patent. The same might be said of an order restoring a suit under O. IX, r. 9, and with much greater reason. The same might be said of any order giving leave to appeal or granting a certificate that a case was a fit one to be taken on appeal. Whether any distinction can logically or practically be maintained between an order setting aside an abatement and an order restoring a suit after dismissal for default may well be doubted. But in the case now before us the order complained of does not set anything aside. It operates merely to declare that the appeal may be entertained.”

With extreme respect I agree with that view. That view was adopted by the Madras High Court in Ananthanarayana Aiyar v. Rarichand. It has been pointed out that in a converse case of Ramchandra Gangadhar v. Mahadev Moreshvar, this Court took a different view from the High Court of Calcutta which held in Gobinda Laldas v. Shibadas Chatterjee that no appeal lay from an order refusing to enlarge time for filing an appeal or an application. It appears from the reported decision that view proceeded upon the effect of the order dismissing the appeal. It put an end to the appeal so far as the Court before which it was pending was concerned; or in other words it debarred the appellant from ever prosecuting the appeal. That is why Mr. Justice Heaton said that the order was very drastic in effect and consequently it was a judgment within the meaning of cl. 15 of the Letters Patent. The same thing cannot be said where delay has been excused and permission has been given to proceed with the appeal, for the order merely allows the proceedings or the appeal to go on. It could not in my opinion be regarded as a final judgment which could be made the subject of an appeal under cl. 15 of the Letters Patent. The decisions in Ibrahimbhai Fazalbhai v. Yoosuf Ismailbhai and Jeranchod v. Dakore Temple Committee emphasise the distinction between an order which is a step in procedure and allows the rights of the parties further to be adjudicated and an order which does not.

It is however urged by Mr. Belavdi for the appellants that there is a distinction between proceedings which arise in suits or appeals and those which are independent and ancillary to the suit, and if a final order in the latter proceedings is passed, it would be a judgment within the meaning of cl. 15 of the Letters Patent. He contends that an application to excuse delay is unconnected with the appeal and an independent proceeding, and therefore the order is a judgment. I think that view is not well founded and is not supported by authority. Not a single instance has been cited where Courts have allowed an order excusing delay to be treated as a “judgment” under cl. 15 of the Letters Patent being an order in an independent proceeding. Cases like Sadashiv v. Soondardas, where an order refusing to grant permission to sue in forma pauperis was held appealable, do not serve as authority. They are not in my opinion inconsistent with the view that where the effect of an order is to deprive the party of a right given to him by statute and debar him from proceeding further, it would be regarded as a judgment.

In my opinion in all cases of this kind the effect of the order has to be decided upon the nature of the facts and circumstances in which it is made. With regard to the present case it is quite clear to me that it is merely a procedural step restoring the appeal to a condition in which the rights of the parties could be decided finally by this Court.

Therefore I would uphold the preliminary objection and dismiss the appeal with costs.

Indarnarayen, J.:—I agree. The word “judgment” in cl. 15 of the Letters Patent is obviously used in the same sense as the word “decree” in the Civil Procedure Code and means a decision which affects the merits of a dispute between the parties by determining some right or liability, as stated in The Justices of the Peace for Calcutta v. The Oriental Gas Company. Stress has been laid on the fact that “it must be a decision between the parties which determines some right or liability” and does not relate to a mere matter of procedure or adjective law. An appeal lies in the case of a judgment which concludes the further progress of a suit, appeal, or proceeding, and not against a judgment or order which allows a suit or proceeding to continue. This principle is exemplified in O. XLIII, r. 1, cls. (c) and (d) where though an appeal is allowed in a case where an application for an order to set aside the dismissal of a suit is rejected under r. 9 of O. IX no appeal is allowed from an order which has the opposite effect. Similarly an appeal is allowed from an order under r. 13 of O. IX rejecting an application for an order to set aside an ex parte decree, but no appeal is allowed in the case of an order to the contrary. The question as to whether a party should be allowed to sue or appeal in forma pauperis is not one, to my mind, between the contending parties to the suit, and therefore, a case of that description cannot furnish any proper ground to the appellant for his argument. In Ibrahimbhai Fazalbhai v. Yoosuf Ismailbhai an order varying the date of sale was held not to be a judgment from which an appeal could lie. Mr. Justice Rangnekar there remarked (p. 242): “Every interlocutory order would, in a loose sense, affect a right of some of the parties or impose a liability on others. But to hold that if some right, however unsubstantial it may be, is affected by an interlocutory order made by the Court, the order would be appealable, would, in my opinion, lead to an absurd position. What is to be looked at in such cases is the substance of the matter and the importance of the order made.” In the present case, the order appealed from is one excusing delay in the filing of an appeal. It does not prevent the rights of the parties from being adjudicated upon in the appeal, and hence I agree with the order proposed by my learned Brother that no appeal lies in this case.

Appeal dismissed.

J.G.R

Vaijayantappa Shirasappa Ijari v. Anasuya

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' Arguments

Appellants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Vaijayantappa Shirasappa Ijari v. Anasuya

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