The order appealed against was an order by a Judge sitting on the Original Side of this Court refusing to direct certain allegations in the defendant's written statement to be struck out, at the instance of the plaintiff, as being unnecessary and scandalous.
In our opinion the Judge's order in this case was not a ‘judgment’ within the meaning of Cl. 15, of the Letters Patent and consequently is not appealable. The application was not one which started independent proceedings ancillary to the suit; see the observations of White, C. J., in Tuljaram Row v. Alagappa Chettiar, nor could its effect in any event be to put an end to the suit. The order of course concluded the proceedings, in which the application was made, if that could be regarded as a separate and independent proceeding, but the same might be said of every order made by a Court in the course of the trial of a suit. The proceedings in which Waller, J.'s., order was passed was a part of the proceedings in the suit itself. Therefore I think that when the learned Chief Justice spoke of putting an end to the suit or proceeding, he was thinking of some kind of independent proceeding which could not be called a suit.
It was held in Mahalingam v. C. Natesa Aiyar, that an order refusing leave to amend pleadings was not a judgment within the meaning of Cl. 15, of the Letters Patent. The present order is of a cognate nature, the difference being only that there the plaintiff sought to amend his own plaint and here the plaintiff wishes to have the defendant's written statement amended.
The fact that no appeal is provided by the Civil Procedure Code against an order under O. 6, R. 16, is an indication that the Legislature intended that there should be no appeal in such cases.
The observation of Waller, J., in Sonachallam Pillai v. Kumaravehi Chettiar(3), that all orders passed after contest interpartes should be regarded as judgments was not necessary for the disposal of that case which followed the decision in Tuljaram Row v. Alagappa Chettiar, and appear to us to be too wide. The learned Judge adopted the view of Bittleston, J., in De Souza and another v. Coles(4), from which White, O. J., had expressed his dissent in Tuljaram Bow v. Alagappa Chettiar. The appeal is rejected on the preliminary point of admissibility with costs.
C. K.Appeal dismissed.