Full Judgment
A.P. Sen, J.
1. This is a special appeal directed against the order of P.N. Shinghal J., in S.B. Civil Regular Second Appeal No. 332 of 1963 dated 6-8-1969 for the return of the plaint under Order 7 Rule 10 of the Code of Civil Procedure.
2. The suit out of which this appeal arises, was filed by the appellant Rooplal, as plaintiff for declaration that the Sale-Deed dated 18-8-1951 (exhibit 2) executed by his father Bhooralal of certain lands which constituted joint family property, was not made for legal necessity or for the payment of any antecedent debt and was, therefore, not binding on him; & for possession thereof. The finding of the courts below that the impugned sale was not for legal necessity or for payment of any antecedent debt was not challenged before the learned Single Judge. That being so, the learned Single Judge held the sale to be void ab initio. He was of the view that the substantive relief which the plaintiff claimed was, in fact, for delivery of possession of the land and, therefore, claim in suit fell within the purview of Section 187 of the Rajasthan Tenancy Act and, therefore, the suit was not triable by a civil court. Upon that view, the learned Single Judge made an order for return of the plaint to the proper court under Order 7 Rule 10 of the Code.
3. No-doubt, the special appeal has been filed with the leave of the learned Single Judge, but the question still remains whether or not the order passed by him for tie return of the plaint under Order 7 Rule 10 of the Code was a 'judgment' within the meaning of Section 18 of the Rajasthan High Court Ordinance, 1949.
4. There was a sharp conflict of opinion between different High Courts as to the meaning of the word 'judgment', as used in Clause 10 of the Letters Patent. Their Lordships of the Privy Council in Sevak Jeranchod Bhogi Lal and Ors. v. The Dakore Temple Committee and Ors. A.I.R. 1925 P.C. 155 held that the word 'judgment' in a civil case means a decree. The Supreme Court in Asrumati Devi v. Rupendra Deb : [1953]4SCR1159 laid down the two tests for finding out whether an adjudication was a judgment or not namely:
(1) Whether it terminated the suit or proceedings, and
(2) Whether it affected the merits of the controversy between the parties in the suit itself.
5. It is needless for us to go into the controversy as to the meaning of the word 'judgment' under Section 18 of the Rajasthan High Court Ordinance 1949. By no stretch of imagination can the order passed by the learned Single Judge for the return of the plaint under Order 7 Rule 10 of the Code be regarded as a 'judgment' within the meaning of that section, in as much as it is not a decision which affects the merits of the controversy between the parties by determining some right or liability.
6. The special appeal is, therefore, rejected with costs.