# ASRUMATI DEBI v. KUMAit ItUPENDRA DEB RAIKOT

- **Citation:** [1953] 1 S.C.R. 1159
- **Court:** Supreme Court of India
- **Decided:** 1951-05-16
- **Case number:** CIVIL APPELLA'rE JURISDIC'l'ION: Civil Appeal Deb Roikot No. 92 of 1952
- **Bench:** Patanjali Sastri C. J, Mukherjea, Vivian Bose, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/asrumati-debi-v-kumait-itupendra-deb-raikot-104
- **Pages:** 11

## Headnote

Letters Patent (Calcntta High Court), els. 18, 15-0rder for
tmnsfer of suit 1mde>· cl. 18-Whetlier "jiul,gment"-Appealability
-Meaning of "judgment".
An order for transfer of a suit, made under clause 13 of the
Letters Patent of the Calcutta High Court is not a "judgment"
within the meaning of clause 15 of the Letters Patent and no
appeal lies therefrom under the Letters Patent, as it neither
affects the merits of the controversy between the parties in the
suit itself, nor terminates or disposes of the suit on any ground.
[Meaning of the word "judgment" rliscussed].
Khatizan v. Sonairam (I.L.R. 4 7 Cal. 1104), Jttstices of the
Peace for Calcutta v. Oriental Gas Co.
(8 Beng. L.R. 433),
Dayabhai v. Mui·ugappa Chettiar (I.L.R. 13 Rang. 457), 'l'uljarain
v. Alagappa (I.L.R. 35 l\fad. 1), Matlmra Sundari v. Haranchandra
(I.L.R. 48 Cal. 857), Chandicharan v. Jnanendra (29 C.L.J. 225),
£e,, Badin v. Upendra l'>fohan RmJ Chowdhry (39 C.W .N. 155),
Kunwar Lal Singh v. Uina Devi (A.I.R. 1945 Nag. 156), Smikrw
Deo v. Kalyani (A.LR. 1948 Nag. 85), Sha/lzadi Begum v. Alaknath
(I.L.H. 57 All. 983), Shaw Bari "· Sonalwwl Beli R"m (I.hR. 23
•
a.J.
1153
li'eb. 27
'
•
1160
SUPREME COUR'I' REPORTS
[1953)
1953
Lab. 49l), Sonebai v. Ahmedbhai (9 Born. H.O.R. 398) and Vaghoji
v. Gmnaji (I.L.R. 29 Born. 249) referred to.
kri.1hna Reddi v.
Asrnmati Debi 1'hanikachala (I.L.R. 47 Mad. 136) disapproved.
Kumar;;,pendra
CIVIL APPELLA'rE
JURISDIC'l'ION:
Civil Appeal
Deb Roikot
No. 92 of 1952.
Appeal by special leave from the Judgment and
Order dated 16th May, 1951, of the High Court of
Judicature at Calcutta (Harries C. J. and Das J.) in
Appeal from Original Order No. 136 of 1949 arising
out of Judgment and Order dated the 25th April,
1949, of the said High Court (Banerjee J.) in Extraordinary Suit No. 2of1948.
N. 0. Chatterjee (B. Sen, with him) for the
appellant.
S. P. Sinha (A. K. Dutt, with him) for the
respondent.
1953. February 27. The Judgment of the Court was
delivered by
MuKHERJEA J.-This appeal, which has come before us on special leave, is directed against a judgment
of an Appellate Bench of the Calcutta High Court,
dated the 16th May, 1951, by which the learned
Judges dismissed an appeal taken against an order,
made by a single Judge on the Original Side of that
Court, under clause 13 of the Letters Patent, on the
preliminary ground that the appeal was not competent
in law.
There is no dispute about the material facts of the
case which lie within a short compass. On 7th August,
1947, a suit was filed by the respondent Kumar Rupendra Deb Raikot in the Court of the Subordinate Judge
at Jalpaiguri in 'Vest Bengal,-being Title Suit No. 40
of 194 7 ,-·for recovery of possession of a large estate
known as Baikunthapur Raj situated in that di8triut,
on the allegation that he, being the eldest son of late
Prosanna Deb Raikot, the last holder of the estate, became entitled to the properties on the death of his
father under a custom of the family which excludes all
females from inheritance and follows the rnle of lineal
•
•
' •
S.C.R.
SUPREME COURT REPORTS
1161
primogeniture jn matters of succession.
Prosanna
1953
died in December, 1946, and Asrumati Debi, the appel-
.
.
I ant before us, is admittedly his widow. There was no ,i,,rumati Debi
son born to her and her only child is a daughter namedKnnuir;~pendra
Prativa. According to the plaintiff respondent, his
Deb Raikot
mother Renchi :Qebi, who is a Lepcha by birth was anan'l Other."
other lawfully wedded wife of Prosanna and was married to the latter in what is known as the "Gandharba"
Mukherjea J.
form. Prosanna had three sons by this wife, the plaintiff
being the eldest. Asrumati, it is alleged, took possession of the bulk of the properties comprised in the
estate on the death of her husband, although she had
no legal right to the same and it was to evict her from
these properties that this suit was brought. Besides
Asrumati, the plaintiff also impleaded three other
agnatic relations of the deceased

## Text

' •
s.c.R.
SUPREME COURT REPORTS
1159
are applicable only to disqualifications to which a
1953
member beccrmes subject after he is elected as such, Election 0 01,..
and that neither the Governor nor the Commission mission, India
has jurisdiction to enquire into the respondent's disv.
qualification which arose long before his election.
8
~",;,h~';!:ta
As, however, we have held that the High Court was ,
. .
.
not competent under article 226 to issue any pre- 1 ata.nJali 808"'
rogative writ to the appellant Commission, the appeal is
allowed and thewrit of prohibition issued by the learned
Judge is quashed. We make no order as to costs.
Appeal allowed.
Agent for the appellant and the Intervener :
G. H. Rajadhyaksha.
Agent for the respondent: S. Siibramaniam.
ASRUMATI DEBI
v.
KUMAit ItUPENDRA DEB RAIKOT
AND OTHERS.
[PATANJALI SASTRI C. J., MUKHERJEA,
VIVIAN BOSE and BHAGWATI JJ.]
Letters Patent (Calcntta High Court), els. 18, 15-0rder for
tmnsfer of suit 1mde>· cl. 18-Whetlier "jiul,gment"-Appealability
-Meaning of "judgment".
An order for transfer of a suit, made under clause 13 of the
Letters Patent of the Calcutta High Court is not a "judgment"
within the meaning of clause 15 of the Letters Patent and no
appeal lies therefrom under the Letters Patent, as it neither
affects the merits of the controversy between the parties in the
suit itself, nor terminates or disposes of the suit on any ground.
[Meaning of the word "judgment" rliscussed].
Khatizan v. Sonairam (I.L.R. 4 7 Cal. 1104), Jttstices of the
Peace for Calcutta v. Oriental Gas Co.
(8 Beng. L.R. 433),
Dayabhai v. Mui·ugappa Chettiar (I.L.R. 13 Rang. 457), 'l'uljarain
v. Alagappa (I.L.R. 35 l\fad. 1), Matlmra Sundari v. Haranchandra
(I.L.R. 48 Cal. 857), Chandicharan v. Jnanendra (29 C.L.J. 225),
£e,, Badin v. Upendra l'>fohan RmJ Chowdhry (39 C.W .N. 155),
Kunwar Lal Singh v. Uina Devi (A.I.R. 1945 Nag. 156), Smikrw
Deo v. Kalyani (A.LR. 1948 Nag. 85), Sha/lzadi Begum v. Alaknath
(I.L.H. 57 All. 983), Shaw Bari "· Sonalwwl Beli R"m (I.hR. 23
•
a.J.
1153
li'eb. 27
'
•
1160
SUPREME COUR'I' REPORTS
[1953)
1953
Lab. 49l), Sonebai v. Ahmedbhai (9 Born. H.O.R. 398) and Vaghoji
v. Gmnaji (I.L.R. 29 Born. 249) referred to.
kri.1hna Reddi v.
Asrnmati Debi 1'hanikachala (I.L.R. 47 Mad. 136) disapproved.
Kumar;;,pendra
CIVIL APPELLA'rE
JURISDIC'l'ION:
Civil Appeal
Deb Roikot
No. 92 of 1952.
Appeal by special leave from the Judgment and
Order dated 16th May, 1951, of the High Court of
Judicature at Calcutta (Harries C. J. and Das J.) in
Appeal from Original Order No. 136 of 1949 arising
out of Judgment and Order dated the 25th April,
1949, of the said High Court (Banerjee J.) in Extraordinary Suit No. 2of1948.
N. 0. Chatterjee (B. Sen, with him) for the
appellant.
S. P. Sinha (A. K. Dutt, with him) for the
respondent.
1953. February 27. The Judgment of the Court was
delivered by
MuKHERJEA J.-This appeal, which has come before us on special leave, is directed against a judgment
of an Appellate Bench of the Calcutta High Court,
dated the 16th May, 1951, by which the learned
Judges dismissed an appeal taken against an order,
made by a single Judge on the Original Side of that
Court, under clause 13 of the Letters Patent, on the
preliminary ground that the appeal was not competent
in law.
There is no dispute about the material facts of the
case which lie within a short compass. On 7th August,
1947, a suit was filed by the respondent Kumar Rupendra Deb Raikot in the Court of the Subordinate Judge
at Jalpaiguri in 'Vest Bengal,-being Title Suit No. 40
of 194 7 ,-·for recovery of possession of a large estate
known as Baikunthapur Raj situated in that di8triut,
on the allegation that he, being the eldest son of late
Prosanna Deb Raikot, the last holder of the estate, became entitled to the properties on the death of his
father under a custom of the family which excludes all
females from inheritance and follows the rnle of lineal
•
•
' •
S.C.R.
SUPREME COURT REPORTS
1161
primogeniture jn matters of succession.
Prosanna
1953
died in December, 1946, and Asrumati Debi, the appel-
.
.
I ant before us, is admittedly his widow. There was no ,i,,rumati Debi
son born to her and her only child is a daughter namedKnnuir;~pendra
Prativa. According to the plaintiff respondent, his
Deb Raikot
mother Renchi :Qebi, who is a Lepcha by birth was anan'l Other."
other lawfully wedded wife of Prosanna and was married to the latter in what is known as the "Gandharba"
Mukherjea J.
form. Prosanna had three sons by this wife, the plaintiff
being the eldest. Asrumati, it is alleged, took possession of the bulk of the properties comprised in the
estate on the death of her husband, although she had
no legal right to the same and it was to evict her from
these properties that this suit was brought. Besides
Asrumati, the plaintiff also impleaded three other
agnatic relations of the deceased (who are defendants
Nos. 2 to 4) and also his own two younger brothers as
defendants to the suit.
Asrumati filed her written statement on January 19,
1948, and the main defence put forward by her was
that there was no legal marriage between her husband
and the plaintiff's mother, the latter being only one of
the several mistresses of her husband. She denied that
there was any custom in the family under which
females were excluded from inheritance. The defendants 2 to 4 also filed written statements, challenging
the legitimacy of the plaintiff and his claim to succession, and put forward their own rights as heirs ·under
the customary law obtaining in the family.
On 30th April, 1948, the plaintiff presented an application in the Original Side of the High Court of Calcutta under clause 13 of the Letters Patent, praying
for transfer of the suit filed in the Jalpaiguri court to
the High Court to be tried in its Extraordinary Original
Civil Jurisdiction. This application was heard by
Banerjee J. sitting singly and by his order dated the 25th
of April, 1949, the learned Judge allowed the application, substantially on the ground that having regard to
the atmosphere of prejudice that was created in the
locality by supporters of the defendant, who wielded
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SUPREME COURT REPORTS
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1953
considerable influence in the district, the plaintiff might
Asrurnati Debi have a legitimate apprehension that' he would not
v.
get fair trial in the district court.
Kumar Rupendra
Against this decision the defendant No. 1 took an
Deb Raikat
appeal to the Appellate Bench of the High Court of
and Others.
Calcutta and the learned Judges (Tr~vor Harries C. J.
Mukherjea J. and Das J.) dismissed the appeal on the ground that
the order appealed againt was not a 'judgment' within
the meaning of clause 15 of the Letters Patent. It is
the propriety of this decision that has been challenged
before us in this appeal.
The High Court of Calcutta in holding the appeal
before it to be incompetent based its decision entirely
upon an earlier pronouncement of a Division Bench of
the same court, where it was held by MookerjeeA.C.J.
sitting with Fletcher J. that an order for transfer of a
suit made under clause 13 of the Letters Patent was
not a 'judgment' within the meaning of clause 15 (1 ).
Reliance was placed by the learned Judges for this
view upon the pronouncement of Sir Richard Couch
C. J. in the well-known and often cited case of The
Justices of the Peace for Calcutta v. The Oriental Gas
Company ('), where the learned Chief Justice said as
follows:-
"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 identical question, whether an order for transfer
under clause 13 of the Letters Patent is a 'judgment'
for purposes of appeal, was pointedly raised before the
Madras and the Rangoon High Courts, and while the
Madras High Court (3) answered the question in the
affirmative, a definitely negative answer was given by
(1)
See Khatizan v. Sona.irain, I.L.R. 47 Cal. r104.
(2) 8 Ben. L.R. 433.
(3) Vide Krishna Reddi v. '1.Thanikachala, I.L.R. 47 :i.\Iad. 1,36.
•
•
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I
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S.C.R.
SUPREME COURT REPORTS
1163
the Rangoon High Court('). The Madras decision pur1963
ports to be in accordance with the view enunciated by
A.s1 u1nafi Debi
a Full Bench of that court in T,uljaram v. Alagappa(')
v.
where Sir Arnold \Vhite C, J. sitting with Krishna- Kumar Rupendra
swami Aiyar and Ayling JJ. formulated a definition
Deb Raikot
of 'judgment' in a comprehensive manner differing from
and Othera,
the wide interpretation put upon the term in the
earlier case of DeSouza v. Coles('). "The test seems to Mukherjea J,
me," thus observerl the· learned Chief Justice, "to be
not what i8 the form of the adjudication, but what is its
effect on 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 proceeding, I think the adjudication is a judgment within the meaning of the
clause." This decision, it may be pointed out, has not
only been adhered to in Madras since then without any
comment, but the Calcutta High Court has in several
instances manifested a marked leaning towards it (').
On the other hand, a Full Bench ( 1) of the Rangoon
High Court presided over by Page C.J. took a view
altogether different from that of the Calcutta and the
Madras High Courts as regards the meaning of the
word ' judgment' in clause 13 of the Rangoon Letters
Patent, whioh corresponds to clause 15 of the Letters
Patent of the Calcutta and Madras High Courts. It
was held by the Full Bench of the Rangoon High
Court that the term ' judgment ' in the Letters Patent
means and is a decree in a snit by which the rights of
the parties in the suit are determined.
In other
words, a ' judgment ' is not what is defined in section 2 (9) of the Civil Procedure Code as being the
statement given by the judge of the grounds of a decree
(1) Dayabha.'i v. J'\,Jurugappa (}hettiar, 13 Rang. 457 (F.B.).
(2) 35 Mad,' (F,R),
(3) ~ 11,H,C, R, 384,
(4) \Tide 1l1.athura Sundari v. Haran Ohandra I.L.R. 43 Cal. 857;
Chandi Charan v. Jnanendra
29 C.L.J. 225 at 229; Lta Badin v. Upendra
llfohan Rov Ohaudhury, 39 C.\V. ~. 155.
I
•
1164
SUPREME COURT REPORTS
[1953]
1953
or order, but is a judgment in its final and definitive
. n
. sense embodying a decree. A final
0 judgment is an
Asrumati ,,ebi d' d"
t"
h" h
1 . l d
.
h
. h
v.
a JU ica .10n w 10 cone us1 ve y etermmes t e rig ts
Kumar Rupeudra of the parties with regard to all matters in issue in the
Deb Raikot
suit, whereas a preliminary or interlocutory judgment
and Others.
is a decree by which the right to the relief claimed in
the suit is decided but under which further proceedings
Mukherjea J. are necessary before a suit in its entirety can be disposed of.
Save and except final and preliminary
judgments thus defined, all other decisions are ' orders'
and they do not come within the description of 'judgments' under the relevant clause of the Letters Patent.
No 'order ' is appealable unless an appeal is expressly
provided against it by the Oivil Procedure Code or
some other Act of the Legislature. In this view an
'order' for transferring a suit from a subordinate
court to the High Court could not possibly be regarded
as a ' jndgment ', and consequently no appeal would
lie against such an order. This definition of' judgment' has been accepted in several cases by the Nagpur
High Court (1 ), and substantially this seems to be the
view of the Allahabad High Court also (2).
A Full
Bench of the Lahore High Court("), however, has refused to accept this view and has preferred to follow
the tests enumerated by the Calcutta and the Madras
High Courts. The Bombay High Court accepted the
Calcutta view from the very beginning (4).
In view of this wide divergence of judicial opinion,
it may be necessary for this court at some time or
other to examine carefully the principles upon which
the different views mentioned above purport to be
based and attempt to determine with as much definiteness as possible the true meaning and scope of the
word ' judgment ' as it occurs in clause 15 of the
Letters Patent of the Calcutta High Court and in the
corresponding clauses of the Letters Patent of the other
High Courts. We are, however, relieved from embarking
(I) Vide Kunwa:r Lal Singh v. U1na De1li, A.LR. I945 Nag. 156; Shankar
Deo v. f(alyani, A.LR. 1948 Nag. 85.
(2) Vide Shahzadi Begam. v. Alakhnath, 57 All. 983 (F.B.)
(3) Shaw Hari v. Sonah 1lfol Beli Rarn, I.L.R. 23 Lah, 491.
{4) Vide•Soneba.i v. Ahtnedbhai, 9 Born, H.C.R. 398 .
•
\
•.
I
v
•
S.C.R.
SUPREME COURT REPORTS
1165
on such enqqiry in the present case as we are satisfied
1953
that in none of the views referred to above could
f
A~~~
an order o the character which we have before us, be
regarded as a 'judgment ' within the meaning of Kumar;~pendra
clause 15 of the Letters Patent.
Deb Raikot
Couch C.J., as said already, defined 'judgment' to
be a decision which determines some right or liability
affecting the merits of the controversy between the
parties. It is true that according to the learned Chief
J"ustice an adjudication, in order that it might rank as
a ' judgment', need not decide the case on its merits,
but it must be the final pronouncement of the court
making it, the effect of which is to dispose of or terminate the suit or proceeding. This will be apparent
from the following observations made by Couch C.J.
in the course of his judgment in the case referred to
above:
"It is, however, said that this eourt has already
put a wider construction upon the word ' judgment'
in clause 15 by entertaining appeals in cases where the
plaint has been rejected as insufficient, or as showing that
the claim is barred by limitation, and also in oases
where orders have been made in execution. These
however are both within the above definition of a judgment, and it by no means follows that, because we
hold the order in the present case not to be appealable,
we should be bound to hold the same in the oases referred to. For example, there is an obvious difference
between an order for the admission of a plaint and an
order for its rejection. The former determines nothing,
but is merely the first step towards putting the case
in a shape for determination. The latter determines
finally so far as the court which makes the order is
concerned that the suit, as brought, will not lie.
The
decision, therefore, is a judgment in the proper sense
of the term."
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
lfjf
•
and Other:;,
M ukher jea J.
•
1166
SUPREME COURT REPORTS
[1953]
1963
as a 'judgment', for in that case there would be any
.
. number of judgments in the course of a suit or proAsntmati llel>t cceding, each one of which could be challenged by way
Kumar ;·upe11dra of appeal. The judgment must be the final pronounceDeb Raikot mcnt which puts an end to the proceeding so far as
a 11d Other..
the conrt dealing with it is concerned. It cnrtainly
involves the determination of some right or liability,
MttklterJea J. though it may not be necessary that there must be a
decision on the merits. 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 denision of the Madras High Court to which reference has been made (1).
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 suits 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 m·
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 the Letters
Patent."
As stated already, it is not our purpose in the present ease to frame an exhaustive definition of the word
' judgment' as used in clause 15 of the Letters Patent.
vVe have indicated what the essential features of a
' judgment' are according to both the Calcutta and the
Madras High Courts and all that we need say is that,
in our opinion, an order under clnuse 18 of the Letters
Patent does not satisfy the tests of a ' judgment' as·
fonnulateci by either of these High Courts,
(T) Vide T1tljara111 v . .'!l(lgoppa, 35 ",\Jad, r,
•
•
s.c.:R.
SUPREME COURT REPOR1'S
1167
The questipn that requires determination in an
I9b3
application under clause 13 of the Letters Patent is,
.
.
h th
. l
. l
Id b
d f"
As,.,nnati Debi
w e er a partrcu ar smt s iou
e remove
rom any
v
court which is subject to the superintendence of the"""'"' R
0
nvend·ra
High Court and tried and determined by the latter as
Deb Raikot
a court of extraordinary original jurisdiction. It is
nnd Other.,.
true that unless the parties to the suit are agreed on
h.
·
h
·
b
h
.11uklwrjea ,l.
t 1s pomt, t ere must arise a controversy etween t em
which has to be determined by the court. In the present case, a single Judge of the High Court has decided
this question in favour of the plaintiff in the suit; but
a decision on any and every point in dispute between
the parties to a suit is not necessarily a ' judgment'.
The order in the present case neither affects the merits
of the controversy between the parties in the suit
itself, nor does it terminate or dispose .of t.he suit
on any ground. An order for transfer cannot be
placed in the same category as an order rejecting a
plaint or one dismissing a suit on a preliminary ground
as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to
be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order
is concerned. That suit is completely at an end and it
is immaterial that another suit could be filed in the
same or another court after removing the defects
which led to the order of rejection.
On the other
hand, an order of transfer under clause 13 of the
Letters Patent is, in the first place, not at all an order
made by the court in which the suit is pending. In
the second place, the order does not put an end to the
suit which remains perfectly alive aucl that very suit
is to be tried by another court, the proceedings in the
latter to be taken only from the stage at which they
were left in the court in which the suit was originally
filed.
Mr. Chatterjee in the course of his arguments pfo,eed
considerable reliance upon t,Jrn pronouncement of the
Calcutta High Court in Hadjee Ismail v. Hadjee
1lf ahomed ( 1 ), where it was held by C'ouch c .. J. and
(I) 13 Beng. L.R. 91.
•
•
1168
8UPREME COURT HEPOR'l'8
[i953]
1953
Pontifex J. that an order refus1ng to .rescind leave
Asrumati Debi to sue granted under clause 12 of the Letters Patent
v.
was a ' judgment ' under clause 15 and could be
Kumar Rupendra challenged by way of appeal.
This decision was
Deb Raikot
followed by the Bombay High Court in Vaghoji v.
an.d Othm.
Oamaji( 1); and it is argued by Mr. Chatterjee that
there is no difference in principle between an order of
Mukherjea J. that description and an order transferring a suit under
clause 13 of the Letters Patent. The contention of
Mr. Chatterjee undoubtedly receives support from the
judgment of the Madras High Court in Krishna Reddy
v. 'l'hanikachala('), where precisely the same line of
reasoning was adopted. In our opinion, this reasoning
is not sound and there is an essential difference between an order rescinding or refusing to rescind leave
to sue granted under clause 12 of the Letters Patent
and one removing a suit from a subordinate court to
the High Court under clause 13 of the Letters Patent,
and this distinction would be apparent from the observations of Sir Arnold White C.J. in the Madras Full
Bench case( 3) mentioned above, to which sufficient
attention does not appear to have been paid by the
learned Judges of the same court who decided the later
case. Referring to the decision of the Bombay High
Court in Vaghoji v. Oamaji(
1), White C.J. observed
as follows:
"As regards the Bombay authorities I may refer
to Vaghoji v. Oamaji( 1), where it was held that an
appeal lay from an order dismissing a Judge's summons to show cause why leave granted under clause 12
of the Letters Patent should not be rescinded and the
plaint taken off the file.
Here the adfudication asked
for, if made, u;ould have disposed of the suit. So also
would an order made under an application to revoke a
submission to arbitration. I think such an order is
appealable."
Leave granted under clause 12 of the Letters Patent
constitutes the very foundation of the suit which is
instituted on its basis. If such leave is rescinded, the
( ') l.L.R. z9 Born. 2l9.
(2) I.L.R. 47 ;\lad. 136.
(3) Vide T11ljaram v, Alagappa, 35 Mad. I (F.B.) .
•
\
'
I
•
s.c . .R.
SUPREME COURT REPOR'L'S
li69
suit automatiqally comes to an end and there is no
1953
doubt that such an order would Le a judgment. If, 011
. D .
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h
I
d
d
.
d
d'
. .
!l
Asrumatt
ebi
t e ot er iau , an or er IS ma e
1sm1ssmg
·. ie
v.
Judge's summons to show cause why the leave shouldKumarRupendm
not be rescinded, the result is, as Sir Lawrence
Deb Raikot
Jenkins pointed out(1), that a decision on a vital point
and Others.
adverse to the defendant, which goes to the very root
of the suit, becomes final and decisive against him so Mukherjea ·'·
far as the court making the order is concerned. This
brings the order within the category of a 'judgment'
as laid down in the Calcutta cases.
'Ve need not
express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to
state that there is a difference between an order refusing to rescind leave granted under clause 12 of the
Letters Patent and one under clause 13 directing the
removal of a suit from one court to another, 11nd there
is no good reason to hold that the principle applicable
to one applies to the other also.
The result, therefore, is that, in our opinion, the
view taken by the High Court is right and this appeal
should fail, and is dismissed with costs.
Appeal dismissed.
· Agent for the appellant : P. K. Bose.
Agent for the respondent No. 1: Sukimwr Ghose
for P. 0. Dutt.
BRAHMA PRAKASH SHARMA AND O'L'HEHS
19o3
V.
1lfay 8
THE STATE OF UTTAR PRADESH.
[PATANJALI SASTRI c. J., MUKHERJEA, s. R. DAS,
GHULAJVI HASAN and BHAGWA'l'l .JJ.]
Oontenipt of Oonrts Act, 1926, s. 3 -Reflection on conduct or
character of Judicial OJ)ir-ers - When wnonnts to contempt of court
-Contempt proceedings-Guiding principles - Jlc!tters to be considerecl- Relevancy nf S1tj'·rounrlin.q
circnni.~tanre.fj-J11risrl.iction to
be spa.ringly exercised.
(1) 'Tide Vaghoji v. Ca1naji, I.L,H. 29 Born. 149 .
•