T.S. Thakur, J.
1. In cases involving a challenge to the validity of an interlocutory order, the question of maintainability of an appeal often becomes the subject matter of a forensic debate. The present appeal is no exception and, in our opinion, rightly so because the order under challenge before us is neither a decree within the meaning of Section 2 of the Code of Civil Procedure nor is the same appealable under Order 43 of the Code. An appeal may even then be maintainable provided the order is 'judgment' within the meaning of clause 10 of the Letters Patent read with Section 10 of the Delhi High Court Act. As to what would amount to a 'judgment' under the said two provisions, is not easy to answer. In the absence of any precise definition of what would constitute a 'judgment', judicial pronouncements alone remain a guiding factor. These pronouncements have stopped short of drawing an exhaustive list of what would and what would not constitute a 'judgment' under Clause 10 of the Letters Patent. The result is that the question has to be answered in the peculiar facts and circumstances of each case. Before we do so in the case at hand, we must briefly state the facts leading to the passing of the order under challenge and the essence of the matter which the same deals with.
2. The parties are engaged in a legal fight over the trademark and copyright in what the plaintiff has described as Crocodile Device, in which the plaintiff-respondent claims exclusive ownership. It took the parties nearly four years of long and laborious proceedings before the single Judge to bring the suit to the stage of recording evidence of the plaintiff. In support of its case, the plaintiff filed the affidavits of Shri Christian London, a French National and Shri Anoop Singh, together with certain documents which were not earlier produced by it. No objection, it appears, was raised to the production of the said additional documents by the defendant-appellant no matter the application remained pending for orders for nearly one year. It waited to raise objections to the affidavit of Mr. Christian London and the documents enclosed therewith till the witness arrived from London to depose before the Court. The objections were to the following effect :
i) That the affidavit which had been executed on foreign soil had not been legalized nor apostilled, hence was no affidavit in the eyes of law
ii) That the documents sought to be exhibited at Sl. No. 2,3,6,7,8,9 and 10 were new documents which had been filed by the plaintiffs for the first time together with affidavits of the witnesses without seeking the permission of the Court and without explaining the reasons for such belated filing.
iii) Certain documents filed by the plaintiff were in a foreign language and no translation thereof had been provided as required under the Delhi High Court Rules; and
iv) That the affidavit contained certain statements and averments which went beyond the pleadings of the parties, hence was inadmissible as any evidence unrelated to any averment in the pleadings, was meaningless.
3. The objections were examined and rejected by a learned Judge of this Court by the order impugned in this appeal. The Court also imposed costs of Rs. 50000/- on the defendant for deliberately delaying the progress and eventual disposal of the suit. The present appeal, as already noticed earlier, assails the said interlocutory order on several grounds.
4. Appearing for the plaintiff-respondent, Mr. Lall raised a preliminary objection to the maintainability of the appeal. He argued that the impugned order passed by the learned single Judge did not determine any right or obligation of the parties in the suit either finally or even at an interim stage. It was contended that the effect of the order passed by the learned single Judge was that the Court had granted leave to the plaintiff to produce the documents enclosed with the affidavits subject to any objection which the defendant-appellant may have with regard to their admissibility and the manner of proof of the contents thereof. It was argued that the defendant-appellant had, pursuant to the order in question, cross-examined the witness extensively and brought in all possible legal objections to the admissibility of the documents and their relevance to the controversy at hand. It was submitted that although the learned single Judge had for good reasons overruled the objection to the validity of the affidavit sworn by Mr. Christian London yet the objection could no longer survive after the witness had appeared before the Court and testified on oath to the truth of the averments made in the affidavit. It was in that background a matter of procedure which the learned single Judge had followed and about which there was neither any irregularity nor any illegality. Such matters relating to the procedure followed in the trial of this suit did not determine either finally or even at an interim stage the rights of the parties so as to entitle any one aggrieved thereof to question the order in an appeal like the present.
5. Mr. Chandhiok, learned Counsel appearing for the appellant, on the other hand, argued that since the order under challenge granted leave to the plaintiff to place on record documents which had not been filed at the appropriate stage even when they were in its possession, the same must be deemed to have determined an important part of the controversy. Relying upon the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and Anr. : [1982]1SCR187 , Mr. Chandhiok argued that filing of documents and the need for legalization of the affidavit were matters of moment in the order passed by the Court which would constitute a 'judgment' within the meaning of the Letters Patent and would, thereforee, be appealable. He further submitted that the levy of costs by the learned single Judge was based on an assumption, no matter unsupported by the record, that the appellant had deliberately delayed raising of its objections regarding admissibility of the documents. He urged that an objection to the belated production of documents could be raised only after the witness had appeared in the witness box and formally tendered the documents in its deposition. Reliance was also placed by Mr. Chandhiok upon FDC Ltd. v. Federation of Medical Representatives Association (FMRAI) and Ors. : AIR2003Bom371 which was approved by the Supreme Court in Ameer Trading Corp. Ltd. v. Shapoorji Data Processing Ltd. : AIR2004SC355 .
6. We have given our careful consideration to the submissions made at the bar and perused the record. It is common ground that the impugned order is neither a decree nor is the same appealable under Order 43 of the CPC. Even so, the order passed by a Single Bench in exercise of his original jurisdiction may be appealable before a Division Bench in case the same is a judgment within the meaning of Section 10 of the Delhi High Court Act and Clause 10 of the Letters Patent. The term 'Judgment' has not however been defined either in the Delhi High Court Act or in the Letters Patent. There is all the same no manner of doubt that the term 'Judgment' as it appears in the two provisions, both dealing with the maintainability of appeals against orders passed by a Single Judge, would carry the same meaning. In the absence of any specific meaning assigned to the term 'Judgment' in either of the two provisions, what is a judgment under one must necessarily be a judgment under the other also. Having said so, the question is whether the order passed by the learned Single Judge in the instant case is tantamount to a judgment so as to be appealable before a Division Bench. As to what would constitute a judgment for the maintainability of appeals under the Letters Patent is no longer rest integra. The cleavage in judicial opinion on the meaning of the term 'Judgment' was noticed and resolved by the Supreme Court in Shah Babulal Khimji v. Jayaben : [1982]1SCR187 . Before we refer to the tests prescribed by the apex Court in the said decision, we may notice a full bench decision of this Court in University of Delhi and Anr. v. Hafiz Mohd Said and Ors. : AIR1972Delhi102 . A Bench of five judges had in that case assigned a restricted meaning to the term 'Judgment' and opined that only such adjudications would amount to a judgment as would have the impact of a decree or an order mentioned in Section 104 read with Order 43 Rule 1 of the CPC. The Court had also declined to approve the view that the term 'Judgment' in Section 10(1) of the Delhi High Court had to be interpreted by reference to the tests laid down by different pronouncements while interpreting the said expression under the Letters Patent. The above view was followed in The Public Trustee v. Rajeshwar Tyagi and Ors. AIR 1972 Del 302.
7. The restricted interpretation placed upon the term 'Judgment' in Hafiz Mohd. case (supra) did not find favor with the Supreme Court in Jugal Kishore Paliwal v. S. Sat Jit Singh : (1984)1SCC358 . That was a case where an amendment to the written statement was sought and allowed at the time of framing of issues. An appeal preferred against the said order was dismissed by a Division Bench of this Court holding that the same was not maintainable in view of the full bench decision in Hafiz Mohd. Case (supra). In a further appeal before the Supreme Court, their Lordships held that the decision in Hafiz Mohd.'s case was no longer good law in view of the decision of the Supreme Court in Shah Babu Lal Khimji's case. The following passage from the said decision is in this regard apposite :
Counsel for both the parties are present and we have heard them at length. The High Court was clearly wrong in refusing to go into the merits of the case on the ground that appeal was not maintainable in view of the full bench decision in University of Delhi v. Hafiz Mohd. Said. This decision is no longer good law in view of our decision in the case of Shah Babulal Khimji v. Jayaben D. Kania where we have laid down various parameters and conditions under which an appeal can lie from a single Judge to the division bench.
8. What then is the true test to be applied for determining whether an order is a judgment within the meaning of the Lahore High Court Letters Patent as applicable to the High Court of Delhi and Section 10 of the Delhi High Court Act can be answered authoritatively only by reference to the decision of the apex Court in Shah Babulal Khimji's case (supra) The Court had in that case recognized three distinct kinds of judgments, namely, -
(i) A final judgment which decides all the questions or issues in controversy so far as the Trial Judge is concerned and leaves nothing else to be decided;
(ii) A preliminary judgment where the Trial Court 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 where the Trial Judge passes an order after hearing a preliminary objection raised by the defendant relating to the maintainability of the suit such as bar of jurisdiction, rest judicata etc.; and
(iii) An intermediately or interlocutory judgment which include orders specified in Order 43 Rule 1 and even those which are not included in the said provision but which possesses the characteristics and trappings of finality in that the orders adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding.
9. Mr. Rohtagi did not place the order impugned in the present appeal in the first two categories of judgments mentioned above and recognized by the Supreme Court in Shah Babulal Khimji's case (supra). What he argued was that the impugned order was an intermediately or interlocutory judgment and was thereforee appealable even when it was not an order of the kind made appealable under Order 43 of the CPC. We find it difficult to accept that contention. While dealing with intermediately or interlocutory judgments, the Supreme Court in Khimji's case cautioned :
There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary 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.
10. Their Lordships drew a distinction between an order refusing leave to the defendant to defend the suit which was held to be a judgment and an order granting leave which was held not appealable even when the same adversely affected the plaintiff. Prejudice to the plaintiff in the latter case was not direct or immediate. It was indirect and remote as the plaintiff continued to possess the right to show that the defense was false and succeed in the suit. The Court favored a cautious approach in the matter having regard to the fact that the Trial Judge is a senior court with vast experience of various branches of law occupying a very high status. The Court observed that the judge should be trusted in the matter of discretionary orders with due regard to the well settled principles of civil justice. Their Lordships held that any discretion exercised or routine orders passed by the trial court in the course of the suit that may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a 'judgment' otherwise the appellate court (Division Benches) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The following passage is in this regard apposite: '(1) That the trial judge being a senior judge with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory order 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 otherwise the appellate court (division bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The Courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.'
11. The Court emphasized the importance of finality and the fact that the order decides the questions in controversy either in an ancillary proceeding or in the suit itself. The Court observed :
That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.
12. There is no gainsaying that while the term 'Judgment' appearing in the Letters Patent and Section 10 of the Delhi High Court Act receive a wider and more liberal interpretation than the word 'Judgment' as used in the CPC, every order passed by a Trial Judge would not amount to a judgment. The essence of the legal exposition as emerging from Khimji's case is that there must be finality in the determination of some controversy arising in the suit and not merely an order which invokes the procedural provision as a step in aid of a final determination.
13. In Exports Unlimited v. Delhi State Industrial Development Corporation : 1996(37)DRJ109 a division bench of this Court dealt with an appeal arising out of an order under Order 19 Rule 2 of the CPC seeking cross-examination of the deponent of an affidavit filed in the course of proceedings under Section 20 of the Indian Arbitration Act, 1939. Another appeal disposed of by the same judgment was directed against an order allowing an application under Order 1 and 4 of the CPC seeking leave to deliver interrogatories on behalf of the plaintiff for examination of the defendant. Upon a detailed conspectus of the case law on the subject, Lahoti, J, as His Lordship then was, summed up for the Court the legal position as under :
Though the word 'judgment' as used in Section 10(1) of Delhi High Court Act cannot be equated with a 'judgment' amounting to a decree nor can it be confined to include only such orders as are made appealable under Section 104 read with Order 43 Rule 1 of the CPC, yet, at the same time, every interlocutory order cannot be regarded as a 'judgment'. An order, though interlocutory, may amount to a judgment if it decides a stage in a suit or proceeding or affects vital and valuable rights of the parties and works serious injustice to the party affected. Orders deciding procedural matters or orders which do not affect the rights of the parties cannot be treated as judgments; grievance on that score is always capable of being corrected by the appellate Court in appeal against the final judgment. An order allowing or refusing leave to deliver interrogatories is merely a procedural step in a suit. It does not affect, much less vitally affect, the rights of the parties.
14. The Court held that no appeal was maintainable against an order passed under Order 11 Rule 11 of the CPC as grant or refusal of permission to deliver interrogatories did not amount to adjudicating any right or obligation of parties in controversy. The Court also held that refusing the leave to cross-examine the deponent on an affidavit filed in the course of the proceedings under Section 20 of the Arbitration Act also did not determine any valuable right of any parties inasmuch as in an appeal preferred against the final order, the party who has been deprived of such an opportunity shall have the right to raise an appropriate contention before the appellate court. Both the appeals were in that view dismissed.
15. Applying the principles stated in Khimji's Case and those in the DSIDC's case (supra), we have no manner of doubt that the order passed by the learned single Judge in the present case does not determine any right leave alone any valuable right of any one of the parties nor does the same determine the controversy in the suit or any part thereof so as to constitute a 'judgment' appealable under the Delhi High Court Act or Clause 10 of the Letters Patent as applicable to this Court. The order passed by the learned single Judge has examined the additional documents produced by the plaintiff-respondent and come to the conclusion that they could be allowed to be produced as four out of the five documents were in the nature of public documents while the documents mentioned at Item No. 5 of the order passed by the learned single Judge were in the nature of literature/reports in respect of the copyright and trademark of the plaintiff's the production whereof could not cause any serious prejudice to the defendant-appellant. The Court held that the defendant would have a right to cross-examine a witness and raise objections to the admissibility of these documents at the trial. The following passage in the order under challenge is in this regard apposite :
The documents at Sl. Nos. (i) to (iv) above are of the kind which can be allowed to be produced since they are in the nature of public documents. So far as documents at Sl. No. (v) above are concerned, even they can be allowed to be produced at this stage. No serious prejudice would be caused to the defendant by the production of any of these documents. The defendant would have his right to cross examine the witness and raise his objection to the admissibility of these documents. In the interest of justice, I grant leave to the plaintiff to produce the said documents subject to any objections with regard to their admissibility, and the manner of proof of the contents of the documents.
16. The grant of leave subject to the objections of the defendant with regard to the admissibility and the mode of proof of contents of the document is a matter which is purely procedural in nature and does not determine any right or obligation in the suit pending before the learned single Judge. So also the objection regarding the need for legalization and apostilling of the affidavit sworn by Shri Christian London has been correctly dealt with by the learned single Judge who has, relying upon the 'Convention Abolishing The Requirement of Legislation For Foreign Public Documents', held that the Diplomatic or Consular Officers were empowered to administer oath and to take any affidavit and also to do the notarial act which a Notary Public may do in the State where the Diplomatic or Consular service is functioning. The documents notarised by such officers were, thereforee, deemed to be validly notarized in India. The Court has, in our opinion, rightly held that even though there might be no reciprocity between India and another country under Section 14 of the Notaries Act, 1952, the notarial acts of the Notaries in the foreign country could be given legal recognition by the courts and authorities in India. That aspect is covered even by the decision of this Court in Rajesh Wadhwa v. Dr. (Mrs.) Sushma Govil : AIR1989Delhi144 .
17. Independent of what is indicated above, the learned single Judge was right in holding that once the witness had appeared in the witness box and on oath solemnly affirmed the contents of his affidavit which was tendered in evidence the procedural irregularity in the notarisation of the affidavit had disappeared. All told, the second aspect of the controversy which the learned single Judge has dealt with in the order is also in the nature of a procedural matter which does not determine any part of the controversy in the suit either finally or at an interim stage.
18. The grievance made by the appellant in regard to the levy of costs of Rs. 50000/- upon the appellant would also not render the present appeal maintainable. The order passed by the learned single Judge in that regard proceeds on a clear finding recorded against the appellant that it was trying to create unjustified impediments in the progress of the suit with a view to unduly protract the proceedings. Costs, it is well-settled are entirely in the discretion of the Court, in as much as the learned single Judge had viewed rather seriously the attempts made by the appellant in prolonging the proceedings and in creating unnecessary impediments in the progress of the same. No part of the controversy in the suit was determined either finally or at an interim stage so as to make the order appealable on that count.
19. The preliminary objection regarding the maintainability of the appeal, must thereforee succeed and is accordingly upheld. Consequently, this appeal fails and is hereby dismissed with costs of Rs. 15000/-.