Judgment:
Form No.J.(2) IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction Original Side Present : The Hon’ble Mr. Justice Ashim Kumar Banerjee And The Hon’ble Justice Arijit Banerjee G.A. No.559 of 2014 APO No.258 of 2012 C.S. No.140 of 2009 S.S. Bhalotia & Ors. Vs. Essem Enterprises Private Limited & Ors And G.A. No.560 of 2014 APO No.259 of 2012 C.S. No.141 of 2009 S.S. Bhalotia & Ors. Vs. Fortune Enterprises For the Petitioners : Mr. Mr. Mr. Mr. Jayanta Kumar Mitra, Senior Advocate Jishnu Chowdhury, Advocate Aninruddh Poddar, Advocate Anurag Bagaria, Advocate For the Respondents : Mr. S.N. Mookherjee, Senior Advocate Mr. Krishna Raj Thakker, Advocate Mr. Rudrajit Sarker, Advocate Heard on : March 31, 2014. Judgment on : April 10, 2014. ASHIM KUMAR BANERJEE, J.
The Code of Civil Procedure would clearly categorize the decisions of one Court to be available for appeal before the superior Court. A class of decisions is specified as order that would be covered by Order XLIII whereas the other class to be treated as decree would be dealt with by Order XLI. There are orders where appeal would not be maintainable and revision would lie, yet many a times there are confusions looking at the nature of the decision. The Court of law does not dismiss those erroneous appeals as a matter of course and often permit the appellants to convert it into the right form. This procedure is not unknown. This is an intra Court appeal within the meaning of clause 15 of the Letters Patent. The decision was rendered under Order VII Rule 10 and 11 wherein the learned Single Judge dismissed the suit filed by the appellant. Appellant filed the appeal treating it as an appeal from order that should have been an appeal from decree. The respondent would contend, they cautioned the appellant at the admission stage. Yet the appellant was callous. The appeal appeared for hearing before us when the appellant realized their mistake and sought an adjournment to make the present application for amendment that was in effect, correction of such mistake. The appellant prayed for amendment of the cause title and the body of the Memorandum of Appeal limited to the mistake referred to above. The respondents contested the application by filing affidavits. Mr. Jishnu Chowdhury learned Counsel appearing for the appellant contended, he did not have any specific instruction as to whether the respondent cautioned the appellant at the admission stage. He frankly confessed, the counsel appearing for the appellants realized their mistake when appeal was listed for hearing. Immediately they moved the application for amendment. According to Mr. Chowdhury, the amendment was innocuous and formal in nature that would not change the nature and character, in any event, the amendment, if allowed, would not cause any prejudice to the respondent. Per contra, Mr. K. R. Thakkar, learned Counsel being led by Mr. S.N. Mookherjee learned Senior Advocate would contend, the appeal was defective and was liable to be dismissed. The proposed amendment, if granted, would change the nature and character. In any event, the laws of limitation would hit such amendment. Mr. Thakker would rely upon the following decisions to support his contentions:
1. Rampravesh Singh and others Vs. Mahesh Singh and others reported in All India Reporter 1961 Patna Page129.
2. Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Saraugi and others reported in All India Reporter 2007 Supreme Court Page-1478.
3. Salil Dutta Vs. T.N. and M.C. Private Limited reported in 1993 Volume-II Supreme Court Cases Page-185.
4. Chetan Lal Purshottam Singh Daoo Vs. Dau G.S. Gupta and others reported in All India Reporter 1938 Nagpur Page -233.
5. Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and others reported in All India Reporter 1961 Supreme Court Page- 832.
6. Ram Narain Joshi Vs. Parmeswar Narain Mahta and Others reported in Indian Law Reporter 1903 Calcutta Page- 309 We have considered the rival contentions. We have carefully perused the proposed amendment. We fully agree with Mr. Chowdhur