# • • "--. SHAH BABULAL fKHIMJI v. JAYABEN D. KANIA AND ANR

- **Citation:** [1982] 1 S.C.R. 187
- **Court:** Supreme Court of India
- **Decided:** 1982
- **Bench:** S. Murtaza Fazal Ali, A. Varadarajan, Amarendra Nath Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shah-babulal-fkhimji-v-jayaben-d-kania-and-anr-8278
- **Pages:** 96

## Headnote

187
Code of Civil Procedure, 1908-Section 104 Order 43 Rule I-Scope ofLetters Patent-Clause 15-Right of Appeal under chruse 15--Jf affected by sec·
lion 104,'_0rder 43 Rule 1.
In a suit for specific performance of an agreement to sell filed on the original
side of the Bombay High Court the plaintiff (appellant) prayed for certain
interim reliefs. A single Judge of the High Court dismissed the application. A
Division Bench of the High Court, on appeal by the plaintiff, held that the
appeal was not maintainable on the ground that the impugned order of the
single Judge was not a 'juGgment' within the meaning of clause 15 of the Letters
Patent of the High Court.
In appeal to this Court it was contended on be:half of the appellant that
since the trial Judge is governed by the procedure prescribed by the Code of
Civil Procedure, by virtue of the provisions of section 104 read with Order 43
Rule (I) the impugned order is appealable to a larger Bench; (2) assuming that
the Letters Patent was a special law, section 104 re~ad with Order 43 is in no
way inconsistent with clause 15 of the Letters Patent; (3) even if section 104 read
with Order 43 Rule l does not apply an order refusing to appoint a receiver or
to grant injunction has the attributes of finality and, therefore, amounts to a
'"judgment' within the meaning of Letters Patent.
Allowing the appeal
HELD:
(per Fazal Ali and A. Varadarajan, JJ.)
A
B
c
D
E
F
(Amarendra Nath Sen, J. concurring.)
G
Since the Order of the trial Judge was one refusing appointment of a
receiver and grant of ad-interim injunction, it is a 'judgment' within the meaning
of the Letters Patent both because order '3 rule 1 applies to internal appeals in
the High Court, and such an order even on merits contains the quality of finality and would be a judgment within the meaning of clause 15 of Letters Patent.
H
Hence an appeal is maintainable to the Division Bench. The Division Bench
was in error in dismissing the appeal without deciding it on merits. (259 F-G]
188
SUPREME COURT REPORTS
[1982] I S.C.R,
A
There is no inconsistency between section 104 read with Order 43 Rule l,
B
c
D
E
F
G
H
C.P.C. and appeals under Letters Patent. There is nothing to show that Letters
Patent in any way excludes or overrides the application of section 104 read with
Order 43 Rule 1 or that these provisions do not apply to internal appeals within
the High Court. [237 E-F]
Code of Civil Procedure 1877, by sections 588 and 589, did not make any
distinction between appeals to the High Court from the District Court and
internal appeals to the High Court under Letters Patent. Notwithstanding the
clear enunciation of law by the Privy Council that section 588 did not affect nor
was it inconsistent with the provisions of Letters Patent and that, therefore,
orders of a trial Judge which falt beyond section 588 could be appealable to a
larger bench under the Letters Patent if its orders amounted to a 'judgment'
within the meaning of clause 15 of the Letters Patent, there was a serious
controversy among the High Courts on this question. Section 104 of the C.P.C.,
1908 made it clear that appeals against orders mentioned in Order 43 Rule l
were not in any way inconsistent with the Letters Patent but merely provide
additional remedy by allowing appeals against miscellaneous orders passed by
the trial Judge to a larger bench. (205 E-G]
In dealing with a suit the trial Judge has to follow the procedure prescribed
by the Code. It is indisputable that any final judgment passed by the trial Judge
amounts to a decree and under the provisions of the Letters Patent an appeal
lies to a larger bench. Letters Patent itself does not define the term 'judgment'
and has advisedly not used the word 'decree' in respect of a judgment given by
the trial Judge. [205 B·D]
Section 5 of the Code empowers the State Govrnment to apply the provisions
of the Code where any enactment is silent as to its applicability. Section 5 makes
clear that, excepting the Revenue Court

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SHAH BABULAL fKHIMJI
v.
JAYABEN D. KANIA AND ANR.
August JO, 1981
[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND
AMARENDRA NATH SEN, JJ]
187
Code of Civil Procedure, 1908-Section 104 Order 43 Rule I-Scope ofLetters Patent-Clause 15-Right of Appeal under chruse 15--Jf affected by sec·
lion 104,'_0rder 43 Rule 1.
In a suit for specific performance of an agreement to sell filed on the original
side of the Bombay High Court the plaintiff (appellant) prayed for certain
interim reliefs. A single Judge of the High Court dismissed the application. A
Division Bench of the High Court, on appeal by the plaintiff, held that the
appeal was not maintainable on the ground that the impugned order of the
single Judge was not a 'juGgment' within the meaning of clause 15 of the Letters
Patent of the High Court.
In appeal to this Court it was contended on be:half of the appellant that
since the trial Judge is governed by the procedure prescribed by the Code of
Civil Procedure, by virtue of the provisions of section 104 read with Order 43
Rule (I) the impugned order is appealable to a larger Bench; (2) assuming that
the Letters Patent was a special law, section 104 re~ad with Order 43 is in no
way inconsistent with clause 15 of the Letters Patent; (3) even if section 104 read
with Order 43 Rule l does not apply an order refusing to appoint a receiver or
to grant injunction has the attributes of finality and, therefore, amounts to a
'"judgment' within the meaning of Letters Patent.
Allowing the appeal
HELD:
(per Fazal Ali and A. Varadarajan, JJ.)
A
B
c
D
E
F
(Amarendra Nath Sen, J. concurring.)
G
Since the Order of the trial Judge was one refusing appointment of a
receiver and grant of ad-interim injunction, it is a 'judgment' within the meaning
of the Letters Patent both because order '3 rule 1 applies to internal appeals in
the High Court, and such an order even on merits contains the quality of finality and would be a judgment within the meaning of clause 15 of Letters Patent.
H
Hence an appeal is maintainable to the Division Bench. The Division Bench
was in error in dismissing the appeal without deciding it on merits. (259 F-G]
188
SUPREME COURT REPORTS
[1982] I S.C.R,
A
There is no inconsistency between section 104 read with Order 43 Rule l,
B
c
D
E
F
G
H
C.P.C. and appeals under Letters Patent. There is nothing to show that Letters
Patent in any way excludes or overrides the application of section 104 read with
Order 43 Rule 1 or that these provisions do not apply to internal appeals within
the High Court. [237 E-F]
Code of Civil Procedure 1877, by sections 588 and 589, did not make any
distinction between appeals to the High Court from the District Court and
internal appeals to the High Court under Letters Patent. Notwithstanding the
clear enunciation of law by the Privy Council that section 588 did not affect nor
was it inconsistent with the provisions of Letters Patent and that, therefore,
orders of a trial Judge which falt beyond section 588 could be appealable to a
larger bench under the Letters Patent if its orders amounted to a 'judgment'
within the meaning of clause 15 of the Letters Patent, there was a serious
controversy among the High Courts on this question. Section 104 of the C.P.C.,
1908 made it clear that appeals against orders mentioned in Order 43 Rule l
were not in any way inconsistent with the Letters Patent but merely provide
additional remedy by allowing appeals against miscellaneous orders passed by
the trial Judge to a larger bench. (205 E-G]
In dealing with a suit the trial Judge has to follow the procedure prescribed
by the Code. It is indisputable that any final judgment passed by the trial Judge
amounts to a decree and under the provisions of the Letters Patent an appeal
lies to a larger bench. Letters Patent itself does not define the term 'judgment'
and has advisedly not used the word 'decree' in respect of a judgment given by
the trial Judge. [205 B·D]
Section 5 of the Code empowers the State Govrnment to apply the provisions
of the Code where any enactment is silent as to its applicability. Section 5 makes
clear that, excepting the Revenue Courts, all other Civil Courts would normally
be governed by the provisions of th~ Coje in the matter of procedure.[206H 1207Al
Section 4 of the Code which provides that in the absence of any specific
provision to the contrary the provisions of the Code do not limit or affect any
special or local law, is not applicable in the instant case because even if the
Letters Patent is deemed to be a special law within the meaning of this section
the provisions of section 104 do not seek to limit or affect the provisions of
the Letters Patent. (207 B-C]
By force of section 104 all appeals, as indicated in the various clauses of
Order 43 Rule 1, would lie to the appellate court. In short a combined reading
of the various provisions of the Code leads to the conclusion that section 104
read with Order 43 Rule 1 clearly applies to proceedings before a trial Judge of
the High Court, (207 H; 209 Bl
In the instant case, therefore, section 104 read with Order 43 Rule 1 does
not in any way abridge or interfere with or curb the powers conferred on the
trial Judge by clause 15 of Letters Patent. They only give an additional remedy
by way of appeal from the orders of the trial Judge to a larger bench. That
being so there is no force in the respondent's argument that these provisions do
not apply to imernal appeals in the High Court. [209 D-E]
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189
Hurrish Chunder Chowdry v. Kali Sundari Debia, 10 I.A. 4, Mt. Sabitri
Thakurain v. Savi & Anr. A.I.R. 1921 P.C. 80, Union of India v. Mohindra Supply
Co., [1962] 3 S.C.R. 497 and Shankarlal Aggarwal & Ors. v. Shankar/al Poddar &
Ors. [1964] 1 S.C.R. 71, referred to.
A number of enactments, as for example, :;ection 202 of the Companies
Act, 1956 and section 39 of the Arbitration Act widen, rather than limit, the
original jurisdiction of the High Court by conferring additional or supplementary
remedy by way of appeal to a Division Bench from the judgment of a single
Judge. On a parity of reasoning, therefore, section 104 read with Order 43 Rule 1
expressly authorises and creates a forum for appeal against orders falling under
the various clauses of Order 43 Rule 1 to a larger bench of the High Court without disturbing, interfcrring with or over-riding the Letters Patent jurisdiction.
[211 B-C]
Dayabhai Jiwandas & Ors. v. A.M.M. Afurugappa Chettiar, I.L.R. 13
Rangoon 457, Sonbai v. Ahmedbhai Habibhai [11172] 9 Born. HC Reports. 398,
Rajagopal & Ors. (in Re. LPA 8 of 1886) !LR 9 Mad. 447, Ru/du Singh v. Sanwal
Singh [1922] !LR 3 Lahore 188, Lea Badin v. Upendra Mohan Roy Chaudhary &
Ors. [1934-35] 39 CWN 155, Mathura Sundari Dassi v. Haran Chandra Shaha &
Ors. A.LR. 1916 Cal. 361 Abdul Samad & Ors. v. The State of J & K. A.I.R.
1969 J&K 52, and Kumar Ga11gadhar Bag/av. Karui Chunder Mukerjee & Anr., 40
CWN 1264, approved.
Ram Sarup v. Kaniz Ummehani, ILR 1937 Al.I. 386 over-ruled.
Assuming that Order 43 Rule 1 does not apply to Letters Patent appeals
the principles governing these provisions would apply by process of analogy. The
provisions of Order 43 Rule 1 possess the traits, trappings and qualities and
characteristics of a tinal order.
Although the word 'judgment' has not been
defined in the Letters Patent but whatever test 1nay be applied the order pass~d
by the trial Judge appealed against must have the traits and trappings of finality.
The appealable orders indicated in the various clauses of Order 43 Rule 1 are
matters of moment deciding valuable rights of the parties and are in the nature of
final orders so as to fall within the definition of 'judgment'. [2370; 225 E-F]
Radhey Shyam v. Shyam Behari Singh [1971] l S.C.R. 7g3 referred to.
Pandy Walad Dagadu Mahar & Anr. v. Jamnadas Chotuma/ Marwadi,
A.I.R. 1923 Born. 218; Vaman Ravi Kulkarni v. Nagesh Vishnu Joshi & Ors,
A.I.R. 1940 Born. 216; Vishnu Pratap & Ors. v. Smt. Revati Devi & Ors. A.1.R.
1953 All. 647; Madhukar Trimbak/al v. Shri Sari Godawari Uparani Maharaj of
Sakori & Ors. A.LR. 1940 Nagpur 39; Ratan/al Jankidas Agarwal v. Gajadhar &
Ors.; A l.R. 1949 Nagpur 188; Beads Factory&: Anr. v. Shri Dhar & Ors. A.LR.
1960 All. 692; J. K. Chemicals Ltd. v. Kreba &. Co.; A.LR. 1967 Born. 56, overruled.
Having regard to the nature of the orders contemplated in the various clauA
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ses of Order 43" Rule 1 \\'·hich purport to decide valuable rights of the parties in the
ancilliary proceedings even though the suit is kept alive these orders possess the
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attributes or characteristics of finality so as to be judgments within the meaning
of clause 15 of the Letters Patent. They are therefore, appealable to a larger
190
SUPREME COURT REPORTS
[1982) ! S.C.R.
A
bench. The concept of the Letters Patent governing only the internal appeals
in the High Courts and the Code of Civil Procedure having no application to such
appeals is based on a serious misconception of the legal position. [237H-238A-BJ
B
c
D
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The question to be decided in this case which is a vexed and controversial
one is as to what is the real concept and purport of the word 'judgment' used in
the Letters Patent. The meaning of the word 'judgment' has been the subject
matter of conflicting decisions of the various High Courts raging for almost a
century and over which despite the length of time no unanimity had been reached
and it is high time that this controversy should be settled once and for all as far
as possible. [238 E-F]
Out of the numerous authorities cited three leading judgments have spelt out
certain tests for determining as to when an order passed by a trial Judge can be
said to be a 'judgment' within the meaning of clause 15 of the Letters Patent and
we are inclined to agree generally with the tests laid down in these cases though
some of the tests laid down are far too wide and may not be correct. [238 G·H]
While the view taken in the Justices of the Peace for Calcutta v. The Orienta/ Gas Company (VIII Bengal L.R. 433) is much too strict, the one taken in
T. V. Tu/jaram Row v. M.K .R. V. A/agappa Chefliar (ILR 35 Madras 1) is much
too wide. The correct test seems to lie somewhere in between the tests laid down
in these cases. Similarly the full Bench decision in Manohar Damodar Bhoot v.
Baliram Ganpat Bhoot (AIR 1952 Nagp~r 357) pithily described the essential
requisites and the exact meaning of the word 'judgment' as used in the Letters
Patent. The pointed observations made in this case try to synthesize the conflicting views taken by the Calcutta and Madras High Courts. They represent the
true scope and import of the word 'judgment' as used in the Letters Patent.
[The Court reviewed the entire case law on the subject laying down
various tests to determine \.vhat a judgment is.]
The test for determining as to when an order passed by a trial Judge can be
said to be a 'judgment' within the meaning of the Letters Patent are :
F
(I) Where an order, which is the foundation of the jurisdiction of the
G
H
Court or one which goes to the root of the action, is passed against a particular
party, it amounts to a judgment. [248 B-C]
Asrumati Debi v. Kumar Rupendra Deb Raikot [1953] SCR 1159
(2)
An order dismissing an application for review would be appealable
under the Letters Patent being a judgment, though it is not made appealable
under Order 43 rule I. [249 BJ
State of Uttar Pradesh v. Dr. Vijay Anand Maharaj [1"963] 1 SCR 1.
(J) The Companies Act, 1956 which confers original jurisdiction on the
trial Judge expressly makes an order passed by the trial Judge under section 202
appealable and, therefore, any order passed under that section would be appea1able under the Companies Act and is, therefore1 a judgment. [249 C-DJ
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BABULAL V. JAYABEN
191
Shankarlal Aggarwal v. Shanker/al Poddar (1964] l SCR 711
(4) Whenever a trial Judge decides a controversy which effects valuable
rights of.one of the parties it is a judgment within the 1neaning of the Letters
Patent. [249 H]
Radhey Shyam v. Shyam Behari Singh [1971] l SCR 783.
(5) Where an order passed by the trial Judge a11owing amendment of the
plaint, takes away from the defendant the defence of immunity from any liability
by reason of limitation, it is a judgment within the meaning of clause 15 of the
Letters Patent. (250 A-BJ
Shanti Kumar R. Canji v. The Home Insurance Co. of New York [1975] 1
SCR 550.
(6) Clause 15 of the Letters Patent does not define the term 'judgment'.
The Letters Patent is a special law which carves out its own sphere and it would
not be possible to project the definition of the word 'judgment' as defined in the
Code of Civil Procedure. Letters Patent were drafted long before the Code of
Civil Procedure of 1882 was enacted. The word 'judgment' used in the Letters
Patent does not mean a 'judgment' as defined in
tht~ Code. At the same time it
does not include every possible order-final, prelirr1inary or interlocutory passed
by a Judge of the High Court. (251 D-E]
·
Mt. Shahzadi Begum v. Alak Nath & Ors. A.I.R. 1935 All 628.
Under the Code of Civil Procedure a judgment consists of reasons and
grounds for a decree passed by a Court. As a judgment constitutes the reasons
for the decree, it follows as a matter of course that the judgment must be a for·
mal adjudication which conclusively determines the rights of the parties with
regard to all or any of the matters in controversy. The concept of a judgment
as defined in the Code seems to be rather narrow and the limitations engrafted
by section 2(2) cannot be physically imported into the definition of the word
'judgment' as used in clause 15 of the Letters Patent because the Letters
Patent has advisedly not used the terms 'order' or
'decree' anywhere.
The intention
of the givers of the
Letters Patent was that the word
'judgment' should receive a much wider and more liberal interpretation than the
word 'judgment' used in the Code of Civil Procedure. At the same time, it
cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the numbe:r of orders which would be
appealable under the Letters Patent. The word 'judgment' has a concept of
finality in a broader and not a narrower sense. (2 52 <1-H; 253 A-C]
A judgment can be of three kinds :
(1) A final judgment: A judgment, which
dc~cides all the questions or
issues in controversy so far as the trial Judge is concerned and leaves nothing
else to be decided is a final judment. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is di:;missed or decreed in part
or in full. Such an order passed by the trial Judge is a judgment within 1he
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192
SUPREME COURT REPORTS
(1982] I S.C.R.
meaning of the Letters Patent and amounts to a deceee so that an appeal would
lie from such a judgment to a Division Bench. [254 D-E]
(2) A preliminary Judgment : A preliminary judgment may be of two
forms : en where the trial Judge by an order dismisses the suit without going
into the merits of the suit but only on a preliminary objection raised by the
defendant or the party opposing on the ground that the suit is not maintainable,
Since the suit is finally decided one way or the other, the order passed by the trial
judge would be a 'judgment' finally deciding the cause so far as the trial Judge is
concerned and, therefore, appealable to a larger bench; {ii) where the trial Judge
passes an order after hearing the preliminary objections raised by the defendant
relating to the maintainability of the suit as for example, bar of jurisdiction, res
judicata, a manifest defect in the suit, absence of notice under section 80 and the
like. An order of the trial Judge rejecting these objections adversely affects a
valuable right of the defendant who, if his objections were held to be valid, is
entitled to get the suit dismissed on preliminary grounds. Such an order, though
it keeps the suit alive, decides an important aspect of the trial which affects a
vital right of the defendant and must, therefore, be construed to be a judgment
so as to be appealable to a larger bench. [254 F-H; 255 A-BJ
(3) Intermediary or Interlocutory judgment: Most of the interlocutory
orders which contain the quality of finality are clearly specified in clause (a) to
(w) of Order 43 Rule 1. They are judgments within the n1eaning of the Letters
Patent and, therefore, appealable. There may also be interlocutory orders not
covered by Order 43 Rule 1 but possessing the characteristics and trappings of
finality because they adversely affect a valuable right of the party or decide an
important aspect of the trial in an ancilhiry proceeding. Before such an order
can be a judgment the adverse effect on the party concerned must be direct and
immediate rather than indirect or remote. Thus when an order vitally affects a
valuable right of the defendant it will be a judgment within the meaning of
Letters Patent so as to be appealable to a larger bench. (255 C-E; 256 A]
Every interlocutory order cannot be regarded as a judgment but only those
orders would be judgments which decide matters of moment or affect vital and
valuable rights of the parties and which work serious injustice to the party
concerned. (256 H-257 A]
The following considerations should prevail with the Court in deciding
whether or not an order is a judgment :
(1) The trial Judge being a senior court with vast experience of various
branches of law occupying a very high status, should be trusted to pa"s discretio.
nary or interlocutory orders with due regard to the well settled principles of civil
justice. Thus any discretion exercised or routine orders passed by the trial Judge
in the course of the suit which may cause some inconvenience or, to some
extent. prejudice one party or the other cannot be treated as a judgment.l258D·E]
(2)
An interlocutory order, in order to be a judgment, must contain the
traits and trappings of finality either when the order decides the question in
controversy in ancilliary proceeding or in the suit itself or in a part of the proceedings. [258 G]
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BABULAL V. JAYABEN
193
It is not the form of adjudication which has to be seen but its actual effects
on the suit or proceedings. [243 H]
If irrespective of the form of the suit or proceeding, the order impugned
puts an end to the suit or proceeding it doubtless amonnts to a judgment. (244A]
If the effect of the order, if not complied with, is to terminate the proceedA
ings, the said order would amount to a judgment. (244 BJ
8
An order in an independent proceeding which is ancillary to the suit, (not
being a step towards judgment) but is designed to render the judgment effectively
,..._
can also be termed as judgment within the meaning of the Letters Patent. [244C]
•
An order may be a judgment even if it does not affect the merits of the suit
or proceedings or Joes not determine any rights in question raised in the suit or
proceedings. i244 D-E]
An adjudication based on a refusal to exercise discretion, the effect of which
is to dispose of the suit, so far as that particular adjudication is con:cerned,
would amount to a judgment within the meaning of the Letters Patent. [244 E-F]
Son1e illustrations of interlocutory orders which n1ay be treated as judgments
may be stated thus :
(I) An order granting leave to amend the plaint by introducing a new
cause of action which completely alters the nature of the suit and takes away a
vested right of limitation or any other valuable right ac·crued to the defendant.
[258 B-C]
(2)
An order rejecting the plaint. [258 CJ
(3) An order refusing leave to defend the suit in an action under Order
37, Code of Civil Procedure. [25l> C]
(4)
An ordrr rescinding leave to tne trial Judge granted by him under
clause 12 of the Letters Patent. (258 D]
(5)
An order deciding a preliminary objection to the maintainability of the
suit on the ground of limitation, absence of notice under section 80, bar against
competency of the suit against
the defendant even though the suit is kept
alive. (258 D-E]
(6) An order rejecting an application for a judgment on admission under
Order 12 Rule 6. (258 E-F]
(7)
An order refusing to add necessary parties in a suit under section 92
of the Code of Civil Procedure. [258 F]
(8)
An order varying or amending a decree. [258 F·G]
(9)
An order refusing leave to sue in forma paup.eris. [258 F·G]
(IO)
An order granting review. [258 F-G]
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SUPREME COURT REPORTS
[1982] I S.C.R.
(11) An order allowing withdrawal of the suit with liberty to file a fresh
one. [258 G-H]
(12) An order holding that the defendants are not agriculturists within the
meaning of the special Jaw. [258 G-H]
(13) An order staying or refusing to stay a suit under section 10 of the Code
of Civil Procedure. [258 HJ
(14) An order granting or refusing to stay execution of the decree. [259A]
(15) An order deciding payment of court fee against the platntiff. (259 B]
(per Amarendra Nath Sen J concurring)
On a plain reading and proper con..,truction of the various provisions of the
Code of Civil Procedure, section 104 of the Code applies to the original side of
the High Court of Bombay and the in1pugned order of the single Judge is
appealable to a Division Bench under this section read with Order 43 thereof.
(279 H; 280 A]
D
The rjght of appeal under clause 15 of the Letters Patent is in no way curtailed
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or affected by section 104. By virtue of the provisions of section 104(1) a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein, even though such orders may or may not be appealable under clause
lS of the Letters Patent as a judgment and the right of appeal under clause 15
remains clearly unin1paired. [275 E-G]
The argument of the respondent, based mainly on the provisions of sections 3 and 4 of the Code of Civil Procedure that even if various other provisions
of the Code apply to the Bombay High Court, including its original side, the
provisions of section 104 read with Order 43 could not apply to lhe original side
of a Chartered High Court because the jurisdiction conferred by clause 15 of the
Letters Patent is a special jurisdiction is without force. [267 B-C]
That by virtue of section 1 (which provides for territorial extent of the operation of the Code) the Civil Procedure Code applies to the State of Maharashtra
cannot be disputed. [268 E-F]
Section 3 which deals with subordination of Courts to the High Court has
no bearing on the point in issue and does not create any bar to the competence
and maintainability of an appeal from an order passed by a single Judge on the
original side if the order is otherwise appealable. While dealing with any matter
on the original side of the High Court a single Judge is in no way subordinate
to the High Court. Nor again, could there be a question of his being a subordinate to the Division Bench which hears an appeal from his judgment. If any
order passed by him on the origina 1 side is a 'judgment' within the meaning of
clause 15 of the Letters Patent an appeal lies to a Division Bench. [272 E-G]
Similarly there is no force in the argument that since section 104 and Order
43 of the Code affect the special jurisdiction conferred on the High Court under
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BABULAL V. JAYABEN
195
clause 15 of Letters Patent these provisions are not applicable to the present
case. (273 C-DJ
Section 4 of the Code cannot be said to be in conflict with the provisions of
clause 15; nor can it be said that it limits or otherwise affects the power and
jurisdiction of the High Court under clause 15. [274 A·B]
Section 4 provides that nothing in the Code ;shall be deemed to limit or
otherwise affect any special or local law in force or any special jurisdiction con·
ferred by or under any Jaw for the time being in force.
Clause 15 confers on the
litigant a right to prefer an appeal from the court of original jurisdiction
to the High Court in its appellate jurisdiction. II confers a right of appeal
from a judgment of any Judge on the original side to the lligh Court. Though
this clause is a special provision it cannot be said that it is intended to lay down
that no appeal would lie from an order of a single Judge on the original side
even if specific provision is made in any statute making the order appealable. By
virtue of this provision any order considered to be a judgment would be appealable. If a statute confers on the li 1igant right of appt~al, it cannot be said that
such provision would affect tbe special provisions of clause 15. This special
power is in no way affected and is fully retained. In addition, the High Court
may be competent to entertain other appeals by virtue of specific statutory
provisions. [273 C-H: 274 A]
On the contrary, the Code contains specific provisions indicating cases in
which its provisions are or are not applicable, as for example section 5, which
make(specific provision regarding the nature and manner of applicability of the
Code to revenue courts. Sections 116 to 120 clearly inJicate that section 104 and
Order 43 apply to the original side of the High Court Section 104 and Order 43
which is attracted by section 104, clearly provide that an appeal shall lie from
the orders mentioned in rule 1 of Order 43. The itnpugned order is one such
order and is clearly appealable. When the legislature conferred such a right on the
litigant a Court would be slow to deprive him of the: statutory right merely on
the ground that the order had been passed by a single Judge on the original side
of the High Court. [274 B-E]
Section 104 recognises that, apart from the ordt~rs made appealable under
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the Code, there may be other orders appealable by any law for the time being in
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force. It further provides that no appeal will lie from any orders other than
orders expressly provided in the Code or by any other Jaw in force. The right of
appeal against a judgment of a single Judge on the original side under clause I 5
is a right conferred by "any other Jaw in force". [275 C-E]
Union of India v. Mahindra Supply Co. [1962) 3 SCR 497 and Mt. Savitrl
Thakurain v. Savi and Anr. [1921] P.C. 80 referred to.
Mathura Sundari Dassi v. Haran Chandra Shaha, A.l.R. 1916 Cal. 361 and
Lea Badin v. Upendra Mohan Roy Choudhary, A.I.R. 1935 Cal. 35 approved.
Vaman Raoji Kulkarni v. Nagesh Vishnu Joshi, A.I.R. 1940 Born. 216 overruled.
Hurrish Chander Chowdhry v. Kali Sundari Debia, JO I.A. 4, held in applicable.
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Unless a right is conferred on him by Jaw, a litigant does not have an inherent right of appeal. An order appeable under the C.P.C. or any other statute
becomes appealable because the. concerned statute confers a right of appeal on the
litigant. But yet such an order may or tnay not be appealable as 'judgment•
under clause 15 of the Letters Patent.
An order appealable under clause 15 as a
'judgment' becomes appealable because the Letters Patent confers the right of
appeal against such order as 'judgment'. Similarly an order appealable under
the Letters Patent may or may not be appealable under the Code. [281 C-E]
The Letters Patent, by clause 15,- confers a right of appeal against a 'judgment'
and therefore an order which satisfies the requirements of 'judgment' within the
meaning of clause 15 becomes appealable. What kind of order will constitute a
'judgment' within the meaning of this clause and become appealable as such must
necessarily depend on the facts and circumstances of each case and on the nature
and character of the order passed. (281 F·G]
A comprehensive d-'finition of 'judgment' contemplated by clause 15 cannot
properly be given. Letters Patent itself does not define 'judgn1ent'. The expres·
sion has necessarily to be construed and interpreted in each case. But yet it is
safe to say that if an order has the effect of finally determining any controversy
forming the subject matter of the suit itself or any part thereto or the same affects
the question of the Court's jurisdiction or the question of limitation, it nonnally
constitutes 'judgment' within the meaning of clause 15 of Letters Patent.
[282 E-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6~2 of
1981
Appeal by special leave from the judgment and order dated
the 15th January, 1981 of the Bombay High Court in Letters Patent
Appeal No. 611of1980.
Safi J. Sorabji G. L. Sanghi, P. H. Parekh, P. K. Slzrojj and
Gautam PhiFps for the Appellant.
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R.P.
Khambata, B.R. Agarwala, K.P. Khambata, Ashok
C. Mehta and Miss Halida Khatun for Respondent No. 1.
K.K. Venugopal, R.
Vaidya, M.B. Rele, Rajiv K. Garg and
-..rN.D. Garg for Respondent No. 2.
The following judgments were delivered :
FAZAL ALI, J.
This appeal by special leave is directed against
an Order dated January 15, 1981 of the Division Bench of the
Bombay High Court by which the appeal filed by the appellant
against the Order of the Trial Judge was dismissed on the ground
that the appeal was not maintainable as the Order impugned was
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BA.BU LAL v. JAY ABEN (Pazal Ali, J.)
197
not a judgment within the meaning of clause 15 of the Letters Patent
of the High Court.
After hearing counsel for the parties at great length we passed
the following Order on April 22, 1981 :-
"We have heard counsel for the parties at great length.
In our opinion, the appeal before the High Court was
maintainable and the High Court should have entertained
and decided it on merits.
We, therefore, allow this appeal, s1!t aside the judgment
dated January 15, 1981 of the Division Bench of the
Bombay High Court and remand the case to the same and
decide it on merits. The High Court will dispose of the
appeal as quickly as possible. The interim order passed
by this Court on February 16, 1981 will continue until the
High Court disposes of the appeal.
Liberty to parties to
approach the High Court for fixing an early date of
hearing.
In the circumstances, there will be no order as to
costs.
Reasoned judgment will follow.''
We now set out to give the reasons for the formal Order
allowing the appeal which was passed by us on the aforesaid date.
As we are not at all concerned with the facts of the case it is
not necessary to detail the same in this judgment. Suffice it to say
that the plaintiff-appellant had filed a suit on the original side of
the Bombay High Court for specific performance of a contract and
prayed for an interim relief by appointing a receiver of the suitproperty and injuncting the defendant from disposing of the suitproperty during the pendency of the suit. The single Judge after
hearing the notice of motion dismissed the application for appointment of receiver as also for interim injunction. Thereafter, the
plaintiff-appellant filed an appeal before the Bombay High Court
which dismissed the appeal as being non-maintainable on the gruund
that the Order impugned (order of the Single Judge) was not a
judgment as contemplated by clause 15 of the letters patent of the
High Court. Hence, this appeal by special leave.
The substantial questions of law raised in this appeal by the
Counsel for the parties are as to the scopt:, ambit and meaning of
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SUPREME COURT REPORTS
(1982] J S.C.R.
the word 'judgment' appearing in clause 15 of the Letters Patent of
the Bombay High Court and corresponding clauses in the Letters
Patent of other High Courts. We might mention here that the significance of the word 'judgment' assumes a special importance in those
High Courts which have ordinary civil jurisdiction depending on valuation of the suit or the action. These High Courts are Calcutta,
Bombay, Madras as also Delhi and Jammu & Kashmir. The other
High Courts do not have any ordinary civil jurisdiction but their
original jurisdiction is confined only to a few causes like probate
and administration, admiralty and cases under Companies Act.
It seems to us that the interpretation of the word 'judgment'
appea ing in the letters Patent of the High Court l1as been the
subject-matter of judicial interpretation by decisions rendered by
various High Courts in India. Unfortunately, however, the decisions
are by no means consistent or unanimous. On the other hand, there
appears to be a serious divergence of judicial opinions and a constant
conflict between 1he High Courts regarding the true scope, ambit
and meaning of the word 'judgment' appearing in the Letters ·Patent
so much so that a colossal controversy has been raging in this country
for more than a century.
Several tests have been laid down by
leading judgments of the Calcutta, Madras and Rangoon High
Courts. Other High Courts have either followed one or the other
of the leading judgments regarding the validity of the tests laid down
by the three High Courts. The Calcutta .High Court appears to have
followed the leading case of its court in The Justices of the Peace/or
Calcutta v. The Orhntal Gos Company (3) where Sir Richard Couch,
C.J. had laid down a particular test on a rather strict and literal
interpretation of the Letters Patent. Later decisions of the Calcutta
High Court have followed this decision of Sir Richard Couch, C.J.
with some modifications and clarifications.
The Madras High Court
has taken a very liberal view in its decision in T. V. Tuljaram Row
v. M .K. R.V. Alagappa Chettior. (2)
The Bombay High Court seems
to have consistently taken the view that no interloclitory order can
ever be said to be a judgment within the meaning of the Letters
Patent so as to be appealable from the order of a Single Judge
exercising original civil jurisdiction (hereinaf!er referred to as 'Trial
Judge') to a larger Bench. The Rangoon High Court speaking
through Sir Page, CJ. in In Re Dayabhai Jiwandas & Ors v. A.M.M.
Murugappa Chet!iar (3) has placed a very narrow ,nterpretation on
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(J) Vlll Bengal L.R. 433.
(2) ILR 35 Madras l.
(3) ILR 13 Rangoon 457.
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BABULAL v. JAYABEN (Fazal Ali, J.)
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the term 'judgment' and has almost equated it with a decree passed
by a civil court.
This Court also bas incidentally gone into the interpretation of
the word 'judgment' and has made certain observations but seems
to have decided the cases before it on the peculiar facts of each case
without settling the conflict or the controversy resulting from the
divergent views of the High Courts. This Court, however, has
expressed a solemn desire and a pious wish that the controversy and
the conflict between the various decisions of the High Courts has to
be settled once for all some time or the other. Jn this connection, in
Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors. (1) this Court
observed as follows :-
"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 di:Oerent
views mentioned above purport to be based and attempt to
determine with as much definiteness as possible the true meaning and scope of th<~ word 'judg1nent' as it occurs in clause 15
of the Letters Patent of the Calcutta High Court and in the
corresponding clauses of the Letters P'.-J«J,1 of the other
High Courts.
We are, however, relieved from embarking
on such enquiry in the present case as we are satisfied that
in none of the views referred to above could an order of
the character which we have before us, be regarded as a
'judgment' within the meaning of clause 15 of the Letters
Patent".
(Emphasis supplied)
Similarly, in the case of State of Uttar Pradesh v. Dr. Vijay
Anand Maharaj, (') this Court noticed the divergence of judicial
opinions on the subject and observed as follows :-
"The scope of the expression "judgment" came under
the judicial scrutiny of the various High Courts, there is a
cleavage of opinion on that question.
tll [1953] SCR 1159.
(2) [1963] 1 SCR l.
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SUPREME COURT REPORTS
[1982] I s.C.11..
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The foregoing brief analysis of judgment shows that
the definition given by the Madra• High Court is wider than
that given by the Calcutta and Nagpur High Courts. It is
not necessary in this case to attempt to reconcile the said
decision or to give a definition of our own, for on the facts
of the present case the order of Mehrotra, J., would be a
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judgment within the meaning of the narrower definition of
that expression".
After, however, analysing the various judgments this Court did
not think it necessary to give any definitirn of its own and refrained
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from giving a final decision on the question as to the scope and
meaning of the word 'judgment' appearing in the Letters Patent.
Mudholkar, J. in his concurring judgment expressly refrained from
expressing any opinion on the subject.
Again in a later decision in Shankar/a/ Aggarwal & Or•. v.
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Shankarlal Poddar & Ors. (') the conflict in the various decisions of
various High Courts was again noticed and this Court observed as
follows :
"There has been very wide divergence of opinion between
the several 'High Court in India as to the content of
the expression 'judgment' occurring in Cl. 15 of the Letters
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not arisen before us either since in view of the construction
which we have adopted of s. 202 of the Indian Companies
Act the scope of the expression 'judgment' in the Letters
Patent does not call for examination or final decision".
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(Emphasis ours)
There are other decisions of this Court also which have touched
the fringes of the question but did not choose to give a final verdict
on the vexed question and preferred to decide the cases on their own
facts.
We shall briefly refer to these decisions at a later stage of
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this judgment.
With due deference to the desire of this Court to settle the
controversy in question once for all, the very able, detailed and
lengthy arguments advanced by counsel for the parties on various
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shades, features and aspects of the interpretation of the word 'judg-
(1) [t964] 1 S.C.R. 717.
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BABULAL v. JAYABEN (Fazal Ali, J.)
201
ment' appearing in the Letters Patent, the serious legal controversy
raging in this country for over a century between the various High
Courts resulting in an irreconcilrable element of judicial uncertainty
in the interpretation of the law and.ifurther having regard to the
huge backlog and accumulation of arrears in the High Courts, we
are clearly of the opinion that the time has now come when the
entire controversy on the subject should be set at rest and an
authoritative pronouncement on the matter may be given by us so
as to maintain complete consistency in deciding the matter by the
High Courts whenever it arises.
Mr. Sorabjee, learned counsel for the appellants has submitted
four important points of law dwelling on the various facts of the
question at issue :
( l) It was contended that the provisions of s. I 04 read with
Order 43 Rule 1 of the Code of Civil Procedure, 1908
(hereinafter referred to as 'Code of 1908') does not
impose any bar on the trial held by the Trial Judge
and thus by virtue of these
provisions the Order
impugned (the order of the trial court refusing to
appoint Receiver and to grant injunction) falls squarely
under clauses (r) and (s) of Ord,,. 43 Rule 1 of the
Code of 1908 and is therefore appelable to a larger
Bench.
In amplificationiof this contention it was submitted
that the Trial Judge is governed by the procedure
prescribed by the Code of 1908 in all matters and
hence there is no reason why Order 43 Rule 1
should not apply to any order passed by the Trial
Judge under any of the clauses of Order 43 Rule I
read with s. 104.
(2)
Even if we assume that the Letters Patent was a
special law which overrides the provisions of the Code
of Civil Procedure, the power under s. I 04 read with
Order 43 Rule 1 is in no way inconsistent with cl.