# SHANTI KUMAR R. CANJI v. THE HOME INSURANCE CO. OF NEW YORK July 24, 1974

- **Citation:** [1975] 1 S.C.R. 550
- **Court:** Supreme Court of India
- **Decided:** 1974-07-24
- **Case number:** Civil Appeal No. 1991 of 1971
- **Bench:** A. N. Ray, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shanti-kumar-r-canji-v-the-home-insurance-co-of-new-york-july-24-1974-6352
- **Pages:** 7

## Headnote

Utters Patent of the Bombay High Court, Cl. 15-Judgment, what is
The appellant filed the suit against the respondent in 1964, on the original side of
the High Court, claiming six months salary in lieu of notice and gratuity. An application for amendment of the plaint in regard to damages for the right to pension
was made in 1970. The respondent contended that the amendment should not be
allowed on the ground inter a/ia that the alleged claim was barred by limitation in
1970. The trial Court aUowed the amendment, but in appeal under 0. 15 of the
Letters Patent, the order was set aside. The High Court considered the application for amendment to be a new claim based upon a new set of facts which became
barred on the date of the application for amendment.
In appeal to this Court, it was contended that: (1) the order of the trial Court
was not a judgment and hence not appealab]e under Cl. 15, and (2) the order
was a ·discretionary order and the appel1ate Court should not have
interfered
with the exercise of discretion.
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Dismissing the appeal,
HELD : (1) A judgment within the meaning of Cl. 15 would have to satisfy
two tests, {a) it must be the final pronouncement which puts an end to the
pro~
ceeding so far as the Court dealing with it is concerned; and (b) it must involve the
deterinination of some right or liability though it may not be necessary that there
must be a decision on the merits. [554 BJ
ln finding out whether any decision is a' judgment within the meaning of Cl.
15, each case must be looked into in order to find out whether there is a decision
<ietemining the right or liability of the parties affecting the merits of the controversy
between the parties .. It is not the form but the nature of the order that has to be
examined in- order to ascertain whether there has been a determination of any .right
or liability. If an amendment merely allows the plaintiff to state a new cause of
action or to ask a new relief or to include a new ground of relief al] that happens is
that it is possible for the plaintiff to raise further contentions in the suit, but it is not
<lecided whether the contentions are right. Such an amendment does nothing more
than regulate the procedure applicable to the suit and does not touch the merits of
the controversy between the parties. Where, on the other hand, an amendment
takes away from the defendant the defence of immunity from any liability_ by reason
of limitation, it is a judgment within the meaning of CL 15. The reason why it be-
·Comes a judgment is that it is a decision affecting the merits of the question between
the parties by determining the right or liability based on limitation. It is the final
deCision as far as the Court is concerned.
The respondent, in the present case,
has acquired. by reason of limitation, immunity from liability, and the appellant,
because of the limitation of the cause of action, has no power to render the respon-
<lent liable for the alleged claim. [554 B-C, G., 555F-H,556A-C]
(2) The order of the trial Court is not one purely based on discretion, and even
with regard to discretionary orders the appellate Court can interfere where the order
is unsupportable in law or is unjust. The High Court was right in holding that
there were no special circumstances to entitle the appellant to introduce the claim
by amendment. [556F]
Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors. [1953}
S. C. R. 1159,
followed.
Justice of the Peace for Calcutta v. Oriental Gas Company, 8 Bengal L. R. 433,
Tu/l'aram v. A/agappa I. L. R. 35 Mad. 1., M. B. Sirkar & Sons v. Powell & Co. A.I.R.
1956. Cal. 630, approved.
Charan Das v. Amir Khan 47 I. A. 255 referred to.
Dayahhai v. Murugappa Chettiar I. L. R. 13 Rang. 457 and Manohar v . . B11i/ram
I.L. R. 1952 Nag. 471, overruled.
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SHANTI KUMAR V. HOME !NSURAKCE CO.
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ARGUMENTS
For the appellant: On the first point, an order allowing amendment is
not a "Judgment" within the meanin

## Text

550
SHANTI KUMAR R. CANJI
v.
THE HOME INSURANCE CO.
OF NEW YORK
July 24, 1974.
[A. N. RAY, C. J. AND K. K. MATHEW, J.]
Utters Patent of the Bombay High Court, Cl. 15-Judgment, what is
The appellant filed the suit against the respondent in 1964, on the original side of
the High Court, claiming six months salary in lieu of notice and gratuity. An application for amendment of the plaint in regard to damages for the right to pension
was made in 1970. The respondent contended that the amendment should not be
allowed on the ground inter a/ia that the alleged claim was barred by limitation in
1970. The trial Court aUowed the amendment, but in appeal under 0. 15 of the
Letters Patent, the order was set aside. The High Court considered the application for amendment to be a new claim based upon a new set of facts which became
barred on the date of the application for amendment.
In appeal to this Court, it was contended that: (1) the order of the trial Court
was not a judgment and hence not appealab]e under Cl. 15, and (2) the order
was a ·discretionary order and the appel1ate Court should not have
interfered
with the exercise of discretion.
'
Dismissing the appeal,
HELD : (1) A judgment within the meaning of Cl. 15 would have to satisfy
two tests, {a) it must be the final pronouncement which puts an end to the
pro~
ceeding so far as the Court dealing with it is concerned; and (b) it must involve the
deterinination of some right or liability though it may not be necessary that there
must be a decision on the merits. [554 BJ
ln finding out whether any decision is a' judgment within the meaning of Cl.
15, each case must be looked into in order to find out whether there is a decision
<ietemining the right or liability of the parties affecting the merits of the controversy
between the parties .. It is not the form but the nature of the order that has to be
examined in- order to ascertain whether there has been a determination of any .right
or liability. If an amendment merely allows the plaintiff to state a new cause of
action or to ask a new relief or to include a new ground of relief al] that happens is
that it is possible for the plaintiff to raise further contentions in the suit, but it is not
<lecided whether the contentions are right. Such an amendment does nothing more
than regulate the procedure applicable to the suit and does not touch the merits of
the controversy between the parties. Where, on the other hand, an amendment
takes away from the defendant the defence of immunity from any liability_ by reason
of limitation, it is a judgment within the meaning of CL 15. The reason why it be-
·Comes a judgment is that it is a decision affecting the merits of the question between
the parties by determining the right or liability based on limitation. It is the final
deCision as far as the Court is concerned.
The respondent, in the present case,
has acquired. by reason of limitation, immunity from liability, and the appellant,
because of the limitation of the cause of action, has no power to render the respon-
<lent liable for the alleged claim. [554 B-C, G., 555F-H,556A-C]
(2) The order of the trial Court is not one purely based on discretion, and even
with regard to discretionary orders the appellate Court can interfere where the order
is unsupportable in law or is unjust. The High Court was right in holding that
there were no special circumstances to entitle the appellant to introduce the claim
by amendment. [556F]
Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors. [1953}
S. C. R. 1159,
followed.
Justice of the Peace for Calcutta v. Oriental Gas Company, 8 Bengal L. R. 433,
Tu/l'aram v. A/agappa I. L. R. 35 Mad. 1., M. B. Sirkar & Sons v. Powell & Co. A.I.R.
1956. Cal. 630, approved.
Charan Das v. Amir Khan 47 I. A. 255 referred to.
Dayahhai v. Murugappa Chettiar I. L. R. 13 Rang. 457 and Manohar v . . B11i/ram
I.L. R. 1952 Nag. 471, overruled.
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SHANTI KUMAR V. HOME !NSURAKCE CO.
5 5 1
ARGUMENTS
For the appellant: On the first point, an order allowing amendment is
not a "Judgment" within the meaning of clause 15 of the Letters Patent.
Divergent views have been taken by various High Courts as to the
meaning of word "Judgment". This question came before this Court
also in the cruse of 'Asrumatidevi' (1953) SCR 1159-where a question
arose whether an order for transfer of a suit under clausel3 of the Letters
Patent (Calcutta High Court) is not a "Judgment" within the meaning
of clause 15 of the Letters Patent; and this Court took the view that
an order of this character could not be regarded as a 'Judgment'
but it did not determine the true meaning and scope of the word "Judgment", nor did it resolve a wide divergence of judicial opinion on the
subject. An order to be a 'Judgment' in Cl. 15 of the Letters Patent
must either determine some right or liability which is in controversy
in the suit either partially or wholly; or it should terminate the proceedings even without deciding any right o~ liability in controversy. Any
wider definition of the word 'Judgment' will make all orders appealable irn<~lctiv' Jf tilJir nature and irrespective of the proceeding in which they are ~passed. An interim order which does not determine any substantive right or liability in controversy (i.e. does not
grant or refuse any part of the relief prayed for in a suit) but decides
a procedural right, however important, is not a 'judgment'. An order
;iJlowing the amendment does not decide any substantive right or liability. It only permits a claim to be agitated and does not decide the
claim and, therefore, the order of the single judge was not appealable.
Justice of the Peace for Calcutta v. The Oriental Gas Co. 8 Bengal
L.R. 433, Tuljaram v. Alagappa Che/ter I.LR. 35 Mad., 1 ;I.LR. Rang.
457 and I.L.R. [1952] Nag. 471 (F.B.) referred to.
On the second point, it is settled law that an appellate Court will
not interfere with such an order passed by the trial Court in excercise of its discretion without exceeding the limits, of its power, unless
it acted perversely or unless the view taken by it is clearly wrong. The
amendment sought for became necessary as on the true and full disclosure of the terms of Pension Rules, the Appellant was found to be
entitled to damages in lieu of pension.
The principle of res judicata did not apply as the earlier order of
the Single Judge allowing the first amendment application partly on
19-1-1970 did not deal with the claim for amortised damage now
sought to be added.
For the Respondent: There is no need to go into the larger question because judged by the tests laid down by a11 the High Courts including the Nagpur High Court, the decision of the trial Court in the
instant case allowing the amendment, is a judgment within the meaning of Cl. 15 of the Letters Patent. By reason of the amendment of the
plaint, the claim made in the amended plaint dates back to the date ,of
the plaint. The application for amendment was filed in Apri), I 970
and by that time, the claim for pension was clearly barred by limitation. By allowing amendment, the valuable right which had accrued
to the defendant to resist the claim for pension, has been lost the
defendants cannot therefore, once the amendment is allowed raise
the plea of limitation. There is a clear negation of valuable right of
552
SUPREME COURT REPORTS
[1975] 1 S.C.R.
the defendant which is undoubtedly a determination of right or
liability as between the two parties. There is difference between the
amendment which does not take away the right of the defendant to
plead limitation and an amendment which affects the rights of the defendants to raise the plea of limitation 1946 Calcutta 630; 1946
Born. 361; AIR 1972 Bombay 27 ; 1967 (2) M.L.J. (FB) referred to.
35 Madras at p. 9 lays down the law that the fact that the order
is one a!Jowi!lg the amendment, is not deeisive and that if in any proceeding, the defendants could have succeeded by the Court passing an
order as prayed for, that itself is sufficient to make a decision a judgment and the fact that the defendant's contention was negatived i.e.
an order prayed by him was not passed; does not make the decision any
the Jess a judgment under Cl. 15. 29 Bombay 249, 253 in [1953] S.C.R.
1159, 1168. 70 Ca. W.N. 670, [1971] S.C.R. 783 referred to.
By allowing the amendment, the right is ~conferred upon the
plaintiff and it carries with it the fastening of liabilities upon the
defendants.
The decision on a vital points adverse to the \lefendant which goes
to the root of the matter and which becomes final and conclusive,
so far as the conrt passing of the or.der is concerned, would amount
to a Judgment because the order is to the effect that the plaintiff is
entitled to make the claim negativing the right of the defendants which
has accrued to him by lapse of time.
CIVIL APPELLATE JURISDICTION: Civil
Appeal No.
1991 of
1971.
From the Judgment and Order dated the 29th March, 1971, of
the Bombay High Court and Bombay in Appeal No. 87 of 1970.
V.M. Tarkunde and Rameshwar Nath for the appellant·
K.S. Ramamurthy and B.R. Aganval for the respondent.
The Judgment of the Court was delivered by
RAY, C. J.-This is an appeal by certificate from the judgment
dated 29th March, 1971 of the High Court of Bombay.
The appellant filed this suit on 2 September, 1964 in the High
Court of Bombay and claimed six months salary in lieu of notice
and gratuity for 16 years of service.
Jn the year 1965 the appellant asked for discovery by the respondent of documents relating to pension scheme for foreign employees.
The application for discovery was dismissed in the month of
November, 1965.
On 16 December, 1969theappellant took out a Chamber Summons
for ammdment of the plaint. The proposed amendments were twofold.
The first set of amendment related to averments in support of
the claim for gratuity which had already been alleged in the plaint.
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SHANTI 1UMAR V. HOME INSURANCE CO. (Ray, C.J.)
553
The second set of amendment related to averments in support of a
claim for Rs. 850 per month by way of pension as and from 1
February, 1964 during the life time of the appellant.
By an order dated 19 January, 1970 the appellant was allowed to
amend the plaint in respect of the claim for gratuity. The appellant's
proposed amendment in support of the claim for pension was refused.
By summons dated 27 April, 1970 the appellant sought an amend·
ment of the plaint claiming Rs. 68,000 as damages in relation tc his
right to pension.
By an order dated 6 July, 1970 the appellant was
allowed to amend the plaint as prayed for.
The respondent preferred an appeal against the order dated 6 July,
1970. The High Court by judgment dated 29 March, 1971 allowed the
appeal and set aside the order dated 6 July, 1970 allowing the amendment.
The appellant repeated the contentions which had been advanced
before the High Court. first, it was said that no appeal could lie
against an order of amendment because it was not a judgment within
the meaning of clause 15 of the Letters Patent. Secondly, it was said
that an order allowing the amendment was a discretionarv order.
Therefore, the appellate court should not have interfered ,;·ith the
discretion.
Counsel for the appellant submitted that 'judgment' means
a
decision finally adjudicating the rights between the parties. It was
emphasised that a judgment would be a decision on substantive rights of
parties. 'Amendment' was submitted to be
a procedural right.
Counsel for the appellant relied on the decision in Dayabhai v. MurrugaPpa Chettiar I. L. R. 13 Rang. 457 and Manohar
v.
Baliram ·
I.L.R. 1952 Nag. 471 in support of the proposition that 'judgment'
means and is a decree in a suit by which the rights of the parties in
the suit are determined.
The locus classicus is the decision of the High Court of Calcuta in
Justice oft he Peace for Calcutta v. Oriental Gas Company 8 Bengal L.R.
433 where Sir Richard Couch, C. J. said "We think tj:Jat 'judgment'
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."
This Court in Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors •
[1953) S.C.R. 1159 dealt with the question as to whether an order of
transfer of a suit filed in the Jalpaiguri Court to the High Court to be
tried in its Extraordinary Original Civil Jurisdiction was a judgment
within the meaning of clause 15 of the Letters Patent. It was held that
an order for transfer of a suit is not a judgment within the meaning of
clause 15 of the Letters Patent as it neither affects the merits of the
554
SUPREME COURT REPORTS
[1975] 1 s.c.R.
controversy between the parties in the suit itself nor terminates or
d}sposes of the suit on any ground.
This Court in Asrumati Debi's case (supra) said that a judgment
within the meaning of clause 15 of the Letters Patent would have to
satisfy two tests. First, the judgment must be the final pronouncement which puts an end to the proceeding so far as the court dealing
with it is concerned. Second, the judgment must involve the determination of some right or liability though it may not be necessary that
there must be a decision on the merits. In this context this Court
referred to observation of the Full Bench of the High Court of Madras
in Tu/j«ram v. A/agappa I.L.R. 35 Mad. I. The test formulated by
the Madras decision is not the form of the adjudication but its effect on
the suit or proceeding in which it is made. The Madras Hight Court
said "if the effect is to put an end to the suit or proceeding so far as the
Clurt 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, the adjudication is a judgment". It may be stated here
that the Madras High Court spoke of 'judgment' on an application in
a suit. The decision of the Madras High Court in Tuljaram' s case
(supra) was on an order for transfer of a suit under clause 13 of the
Letters Patent.
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This Court also noticed the view expressed by the Madras High
Court in Tuljaram's case (supra) that 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 o.f the Letters Patent.
In Asrumati Debi's case (supra) this Court noticed the argument
advanced that if an order refusing to rescind leave to sue granted under
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clause 12 of the Letters Patent was a 'judgment' under clause 15 of
the Letters Patent there was no difference in principle between an order
of th1t description and an order transferring the smt under clause 13
of the Letters Patent. This Court did not express any opinion excepting
observing that if leave under clause 12 of the Letters Patent was rescinded, the suit would c:ome to an end and if an order was made refusing
to rescind the leave the result would be on a vital point adverse to the
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defendant and it would go to the root of the suit and become final and
decisive against the defendant so far as the Court making the order
was concerned.
In finding out whether any decision is a judgment within the
meaning of clause 15 of the Letters Patent each case must be looked
into in order to find out as to whether thereiso decision determining the
right or liability of the parties affecting the merits of the controversy
between the parties. It is in that light that this Court in Asrumati
Dibi's case (supra) described the order refusing to rescind leave to
bo within the category of a judgment as laid down in the Calcutta cases
though no final opinion was expressed as to the propriety of that view.
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Th! present appeal concerns an application for amendment of the
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plaint. The suit was filed in the year 1964. The application for
am!ildm!nt of the plaint in regard to damages for the right to pension
was made in the y~ar 1970. An amendment, if allowed, would relate
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SHANTI KUMAR v. Hop.rn INSURANCE co. (RllJ', C.J.)
555
to the date of the institution of the suit. The respondent contended
before the trial Court entertaining the application fer amendment of the
plaint that the amendment should not be alkwed inter alia on the
ground that the alleged claim was barred by limitation in 1970.
The High Court in the present case relied on the decidon of the
High Court at Calcutta in M.B. Sarkar & Sons v. Powell & Cc.
A.LR. 1956 Cal. 630.
In that case an amendment was allowed on
Chambers Summons substituting in place of the original defendant
which was described as a firm a defendant converted into a cc mpany
in that name. The company so proposed to be substituted cc mplained
that the amendment took away from it a valuable right which had
accrued to it by efilux of time, and, therefore, the amendment shculd
not be allowed. The contention of the defendant was not accepted by
the learned Chamber Judge. The High Court on appeal set aside the or·
der. It was not held to be a case of mis-description of the defendant.
A mis-description of a party impleaded can arise when the party really
intended to be impleaded had always been the same and such intention
appeared clearly from the body of the plaint in spite of the inaccurate
mis-description in the cause title. In such a case, it wculd not be adding a new party or substituting a new party for the origim 1 one, but
perfecting the identity of the party originally impleaded clearing or
rectif}ing the inaccurate description. When the same person, whether
an individual or a legal entity, remains the defendant but only the name
is altered, it would be a case of mis-descripticn. Where a new It gal
entity is substituted, it was held in the M. B. Sirkar case (supra)
that substitution of a company for a firm would be a change of a substantial character affecting the right of a party. The e!fr ct of the
amendment in the Af. B. Sirkar case (supra) was to substitute a
new party for the party originally impleaded and the consequence was
to take away from the new party so substituted his defence of limita
tion that a suit brought on the date of the amendment would be barred by time. Chakravartti, C.J. in the M. B.- Sirkar case (supra)
said that an order for amendment of the plaint there decided a vital
question concerning the merits of the case and the rights of the newly
impleaded party and therefore became a judgment within the meaning
of clause 15 of the Letters Patent.
The right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability. A right is an averment of entitlement arising out of legal rules.
A legal right may be defined as an advantage or benefit conftTred upon
a person by a rule of law. Immunity in short is no liability. It is
an immunity from the legal power of some other person. The correlative of immunity is disability. Disability mef!ns the absence of
power. The appellant in the present case because of the limitation of
the cause of action has no power to render the respondent liable for
the alleged claim. The respondent has acquired by reason of limitation immunity from any liability.
The views of the High Courts at Calcutta and Madras with regard
to th' meaning of 'judgment' are with respect preferred to the mraning of 'judgment' given by the Rangoon and Nagpur High Courts.
556
SUPREME COURT REPORTS
[1975] l s.c.R.
We are in agreement with the view expressed by the High Court at
Calcutta in the M. B. Sirkar case (supra) as to when an order on
an application for amendment can become a judgment within the mean·
ing of clause I 5 of the Letters Patent. If an amendment merely allows
the plaintiff to state a new cause of action or to ask a new relief or to
include a new ground ofreliefall that happens is that it is possible ror
the plaintiff to raise further contentions in the suit, bnt it is not decided
whether the contentions are right. Such an amendment does nothing
m>re than regulate the procedure applicable to the suit. Il does not
decide any question which touches tne merits of the controversy between the parties. Where, on the other hand, an amendment 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 Petcnt. The reason why it becomes a judgment is
that it is a decision affecting the merits of the question between the
parties by determining the right or liability based on limitation. It
is the final decision as far as the trial court is concerned.
In finding out whether the order is a judgment within the meauing
of clause I 5 of the Letters Patent it has to be found out that the order
affects the merits of the action between the parties by determining some
right or liability. :rhe right or liability is to be found out by the court.
The nature of the order will have to be examined in order to ascertain
whether there has been a dermination of any right or liability.
The appellant made an application in December, 1969 for amendment of the plaint to claim pension. Those amendments were disallowed by the learned Chamber Judge. Four months thereafter the
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appellant sought to amend the plaint by adding certain paragraphs
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and those amendments were in relation to the appellant's alleged claim
for pension. The appellant submitted that the second application
for amendment in regard rn the cial)n for
amortised
amount
of damages in relation to pension was not the same as the first application. It was said on behalf of the appellant that if the learned
Judge allowed the application the appeilate court should not have interfored with the discretionary order. The amendment order is not pureF
ly of discretion. Even with regard to discretionary orders the appellate court can interfere where the order is insupportable in law or is
unjust. The High Cou°rt considered the second application for amendment to be a new claim based on the new set of facts which becnme
barred on the date of the application for amendment. In exceptional
cases an amendment has been allowed where the effect is to take away
from a defondant a legal right which has accrued to him by laps~ of
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time, because the court found that consideration of lapse of ttme
is
out weighed by the special circumstan.ces of the. case. (See
Charan Das v. Amir Khan 47 I.A. 255). The High Court nghtly found
that there were no special circumstances to entitle the appellant to
introduce by amendments such claim.
For these reasons, the judgment of the High Court is upheld.
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The appeal is dismissed with costs.
V.P.S.
Appeal dismissed.
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