IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :
30. 04.2013 Coram The Honourable Mr.Justice M.JAICHANDREN and The Honourable Mr.Justice M.M.SUNDRESH Original Side Appeal No.66 of 2012 & M.P.No. 1 of 2012 S.Ramesh Babu Proprietor of Kanagarathna Movies, No.39/6, Brindavan Apartments, Thanikachalam Road, T.Nagar, Chennai-600 017. .. Appellant Vs. P.Changaiah Proprietor, Ravi Prasad Unit, New No.18, Old No.12, Porur Somasundaram Street, North Usman Road, T.Nagar, Chennai-600 017. .. Respondent Origin al Side Appeal filed under Order XXXVI Rule 1 of the Original Side Rules, 1956, read with Clause 15 of the Letters Patent against the order dated 13.12.2011 in Application No.1629 of 2011 in C.S.No.773 of 2010. For appellant : Sri.R.Parthasarathy For respondent : Sri.P.L.Narayanan JUDGMENT M.M.SUNDRESH,J.
An interesting legal issue has arisen in this appeal touching upon the provisions contained in Order VII of Madras High Court Original Side Rules. As it is also imperative to analyse the facts, both the issues governing law and fact are discussed here under.
2. Background facts:
2. 1. A summary suit was filed by the plaintiff under Order VII Rule 1 of the Original Side Rules read with Order XXXVII Rule 1 of Civil Procedure Code towards the recovery of a sum of Rs.1,84,58,710/- along with the interest. 2.2. The plaintiff has been running the business of supplying film shooting equipments. There was an agreement between the plaintiff and the defendant. The plaintiff's case is that supplies have been made to the defendant. The plaintiff maintained a running account in the name of the defendant. The defendant paid a sum of Rs.30,00,000/- (Rupees thirty lakhs only) on 07.05.2007, which was duly credited to his account. Thereafter, further services of the plaintiff were availed. A subsequent payment of Rs.5,00,000/- (Rupees five lakhs only) was made on 01.10.2007, which was also credited to his account. 2.3. It is the further case of the plaintiff that after the settlement of accounts, it was agreed between the parties that a sum of Rs.1,50,00,000/- has to be paid by the defendant towards the full and final settlement of the dues. In discharge of the liability, three cheques have been issued for a sum of Rs.50,00,000/- each by the defendant on 25.12.2009, 04.01.2010 and 31.07.2010 respectively. It was also agreed between the parties that no interest would be charged for the interregnum period. The cheques issued by the defendant got dishonoured. The defendant issued 'stop payment' instruction to the bank. As the liability was on the cheques, a suit was duly laid as a summary suit. 2.4. Pending suit, the plaintiff filed an application under Order XXXIX Rules 1 and 2 of the Civil Procedure Code seeking an order of injunction restraining the defendant from releasing, executing and exploiting the Telugu picture "KOMARAM PULI" produced by the defendant. On 25.08.2011, after directing the defendant to execute the bank guarantee for the suit amount, the learned single Judge passed the following order. " This Court passed an order in O.A.No.956 of 2010 on 07.09.2010. At the instance of the learned counsel appearing for the plaintiff/applicant, this application has been posted before me once again "for being mentioned".
2. I have heard the learned counsel appearing for the plaintiff/applicant and the learned counsel appearing for the respondent. I have also gone through the documents including the order passed by this Court on 07.09.2010.
3. In this application, an order was passed on 07.09.2010 by me and the operative portion of the order is extracted below: "4. In the mean time, to secure the interest of the plaintiff, the defendant shall execute a Bank Guarantee for the suit claim of Rs.1,04,58,710/- in favour of the Registrar General, High Court, Madras, immediately. It is also further undertaken to this Court by the learned counsel appearing on behalf of the respondent/defendant that in the event of some delay in executing the bank Guarantee, the picture shall not be released without executing the Bank Guarantee as stated above and an endorsement has also been made to that effect by the learned counsel for the respondent/defendant in application No.4972 of 2010. The respondent/defendant is present before this Court and he has also signed in the endorsement made by the learned counsel for the respondent/defendant.
5. On such execution of the Bank Guarantee, the learned counsel may make a mention before this Court and thereafter post the matter for further orders to be passed. Since the suit is filed under Order 37 Rule 1 of C.P.C., the Registry may expedite the suit and post it for trial, if need be, on or before 19th January, 2011." 4. In view of the order passed in paragraph-5 as mentioned above, it is submitted that the defendant is taking a stand that this Court has directed the suit to be posted for trial and therefore, the suit has been already converted from summary suit to an ordinary suit.
5. As this was sought to be resisted by the plaintiff, the matter was posted before me "for being mentioned", at the instance of the learned counsel appearing for the plaintiff, to clarify paragraph-5 of the order dated 07.09.2010. 6.After hearing, the learned counsel appearing on either side, I am of the considered view that there is no scope for any clarification, as in paragraph-5 it has been clearly stated that the suit is filed under Order 37 Rule 1 of C.P.C., and only when the necessity arises it may be posted for trial. A summary suit will be posted for trial only when the defendant comes to Court with a triable issue and gets leave of the Court to defend the suit conditionally or unconditionally . At the time of passing the order, this Court has not gone into the question of triable issues and to grant leave to defend the suit either conditionally or unconditionally. Therefore, it is very clear that only when the defendant comes with the triable issues, the suit may be posted for trial, after getting leave to defend the suit. Without doing so, it is not open to the defendant to interpret and to contend that this Court has already granted leave to defend the suit, which is not correct.
7. My order to put the suit for trial is subject to complying with the provisions of Order 37 of C.P.C., and therefore, I reiterate that no leave has been granted, after finding that there is a triable issue. It is open to the defendant to take out necessary steps under Order 37 Rule 1 of C.P.C., or any other remedy available under law.
8. Since the defendant has now taken out an application in A.No.1629 of 2011 under Order 7 Rule 7 of Original Side Rules to that this suit as an ordinary suit, arguments will have to be heard on this application. It is submitted that the counter has been filed by the learned counsel appearing for the plaintiff/respondent in this application.
9. Hence, post this application before the regular Court for hearing." 2.5. An application was filed by the defendant under Order VII Rule 7 of the Original Side Rules before the Court raising the grounds available under Order VII Rule 6 of the Original Side Rules which deals with an application seeking leave to defend. The said application was dismissed by the learned single Judge mainly on two grounds. The first ground is that the appellant ought to have filed an application under Order VII Rule 6 of the Original Side Rules, even though the application filed before the Court instead of Master is maintainable under certain contingencies. The second ground was on merit that the averments made in the affidavit are not sufficient enough for the Court to allow the application, thereby treating the suit as an ordinary suit. Challenge is made to the said order before us by the appellant.
3. Submissions of the appellant: Shri. Parthasarathy, learned counsel appearing for the appellant, would contend that the provisions contained in Order VII Rule 6 of the Original Side Rules and Order VII Rule 7 of the Original Side Rules are different and distinct covering the same scope. Notwithstanding the provision contained in Order VII Rule 6 of the Original Side Rules, the application under Order VII Rule 7 of the Original Side Rules is maintainable. The grounds available be raised under Order VII Rule 6 of the Original Side Rules can also be raised in an application made under Order VII Rule 7 of the Original Side Rules. Order VII Rule 7 of the Original Side Rules provides exclusive power to the Court. The other provision contained under Order VII are subject to Rule 7 and therefore, the application is maintainable. It is not necessary that the defendant will have to exhaust his remedy under Order VII Rule 6 of the Original Side Rules and thereafter, seek a further relief under Order VII Rule 7 of the Original Side Rules. While construing the provisions, the principle of harmonious construction will have to be adopted. The averments made in the affidavit filed in support of the petition would show that triable issues are involved. The appellant has shown his bona fides by depositing a portion of the decree amount. The learned counsel also made a belated attempt stating that the appellant did file an application under Order VII Rule 6 of the Original Side Rules earlier to the application filed under Order VII Rule 7 of the Original Side Rules but unfortunately did not represent the same. Therefore, liberty may be given to proceed with the same in the event of this Court not agreeing with the contentions on merit. In support of his contentions, the learned counsel has made reliance upon the following judgments: (i) UNION OF INDIA V. BRIGADIER P.S. GILL (2012) 4 Supreme Court Cases 463; (ii) IRIDIUM INDIA TELECOM LTD., V. MOTOROL INC., (2005) 2 Supreme Court Cases 145; (iii) D.GOPALAN V. RAGHAVA NAICKER AND OTHERS (1990) 1 Law Weekly 15; (iv) SREYAS SRIPAL AND ANOTHER V. UPASANA FINANCE LTD., (2007) 4 Current Tamil Nadu Cases 161; (v) SHAH BABULAL KHIMJI V. JAYABEN D. KANIA AND ANOTHER (1981) 4 Supreme Court Cases 8; (vi) MECHELEC ENGINEERS AND MANUFACTURERS V. BASIC EQUIPMENT CORPORATION (1976) 4 Supreme Court Cases 687; and (vii) MURAHARI RAO V. BAPAYYA (1962) Law Weekly 316.
4. Submissions of the Respondent: Per contra, Shri P.L.Narayanan, learned counsel appearing for the respondent, would submit that the application filed by the appellant lacks bona fides. The appellant has admitted in categorical terms before the learned single Judge acknowledging his liabilities. He has not filed any application under Order VII Rule 6 of the Original Side Rules. Even if such an application was filed, it was not pursued. This application has been filed as an after thought in order to get over the period of limitation. The issues covered under Order VII Rule 6 of the Original Side Rules cannot be raised and agitated in an application under Order VII Rule 7 of the Original Side Rules. While construing the provisions, the underlined scheme will have to be looked into. Each Rule will have to be given its own meaning. It cannot be made to become redundant and otiose. The appeal filed is also not maintainable under Clause 15 of the Letters Patent. The appellant has got a remedy under Order VII Rule 9 of the Original Side Rules. Since the appellant has admitted his liability, Section 58 of the Indian Evidence Act, 1872, would come into play. If the contention of the appellant is accepted, the very object of the summary proceeding itself would be defeated. Therefore, the appeal will have to be dismissed as devoid of merits. The learned counsel has made reliance upon the following judgments. (i) JAMAL UDDIN AHMAD V. ABU SALEH NAJMUDDIN AND ANOTHER (2003) 4 SCC 257.(ii) JOSEPH MICHAEL V. K.RAMACHANDRAN (1992) 1 Law Weekly 198; (iii) O.P.SINGLA AND ANOTHER V. UNION OF INDIA AND OTHERS (1984) 4 Supreme Court Cases 450; (iv) SIMRATHMULL AND ANOTHER V. JUGRAJ AND ANOTHER (1953) 2 MLJ 354.and (v) A.K.D.RANGASWAMI RAJA AND ANOTHER, IN RE.--(1957) 1 MLJ 364.
5. SCOPE OF ORDER VII:- 5.1. Order VII of the Madras High Court Original Side Rules envisages a special procedure in respect of certain suits. Therefore, it is not meant for all types of suits. This position is made clear under Order VII Rule 1 of the Original Side Rules. Order VII Rule 1 of the Original Side Rules categorises the types of suits, that would come under its purview. For example, a suit to recover the debt or a liquidated demand in the money, supported by a document or any money payable by the defendant arising on Negotiable Instruments are few of the suits that would come under Order VII Rule 1 of the Original Side Rules. In other words, if a suit is not one classified under Order VII Rule 1, then, it cannot be termed as a summary suit. To put it differently, the nature of the suit and the requirement of the evidence are the required ingredients to bring under Order VII of the Madras High Court Original Side Rules. 5.2. Order VII Rule 2 of the Madras High Court Original Side Rules delineates the procedure to be followed in a summary proceeding. It reiterates the position that in a summary suit instituted procedure envisaged under Rules 3 to 6 and thereafter, 8 and 9 will have to be followed. The only exception is Rule 7. The reason is that when an application filed under Rule 7 is allowed, then the suit gets treated as an ordinary suit. Consequently for exercising such a power, no stage is required. In other words, the power under Rule 7 can be exercised at any time. It is not controlled by Rules 3 to 6 and thereafter, Rules 8 and 9, in so far as procedures are concerned. 5.3. Rules 3 to 5 of the Madras High Court Original Side Rules are procedural in nature and they also prescribe a period of time limit. Now coming to the Rule 6 of the Madras High Court Original Side Rules, it gives a right to the defendant to seek a leave to defend. This right has to be exercised by way of an application supported by such evidence. The evidence is the one which a defendant desires to place before the Court. Therefore, Rule 6(1) of the Madras High Court Original Side Rules makes it clear that the defendant has to produce some evidence as he desires to produce before the Court. Thereafter, the Master may grant a leave to defend. The decision of the learned Master can be conditional or unconditional as a particular case would warrant. As per Rule 6(3) of the Madras High Court Original Side Rules, the Master shall pass a decree if the defendant does not appear or when an application seeking leave to defend is rejected. Therefore, Rule 6 of the Madras High Court Original Side Rules makes it clear that the Master has to satisfy on the prima facie material to be produced by the defendant while considering the application filed for leave to defend. 5.4. Now let us have a look at Rule 7 of the Madras High Court Original Side Rules. On a very plain reading, it does look to operate totally on a different field. When a plaint is presented, it would become a summary suit only when it is admitted or marked as a suit under Order 7 of the Madras High Court Original Side Rules. In other words, the averments made in the plaint and the nature of the suit will have to satisfy Order VII Rule 1 before getting admitted or marked as a suit therein. If such a suit is wrongly marked or admitted as summary, then at any stage it can be directed to be treated as an ordinary suit by the order of the Court. Such a power can be exercised by a Court on its own volition or on an application by either of the parties. This is the scope of Order VII Rule 7 of the Madras High Court Original Side Rules. 5.5. Now, let us analyse together all the provisions contained under Order VII of the Madras High Court Original Side Rules. As discussed above, the parameters mentioned under Order VII Rule 6 are distinct and separate. In other words, the defendant has to satisfy the learned Master that an application filed under Order VII Rule 6 of the Madras High Court Original Side Rules is liable to be allowed based upon the evidence produced by him. Thereafter, the Master can grant either a conditional or unconditional leave. Therefore, the Master is bound to consider the materials produced by the defendant. This is the sum and substance of scope of Order VII Rule 6 of the Madras High Court Original Side Rules. Therefore, Order VII Rule 6 of the Madras High Court Original Side Rules cannot escape the rigour of Orders 3 to 5, wherein procedures have been contemplated to be followed within the time prescribed. 5.6. Hence, we are of the considered view that the attempt made by the appellant to import of Order VII Rule 6 of the Madras High Court Original Side Rules into Order VII Rule 7 of the Madras High Court Original Side Rules, cannot be accepted. Order VII Rule 7 of the Madras High Court Original Side Rules does not speak about any evidence. This power is given to the Court either on its own motion or on an application to be made by either of the parties to see whether Order VII Rule 1 is complied with properly. We feel that the words used in Order VII Rule 7 of the Madras High Court Original Side Rules that it can be exercised "at any stage" and the reference made specifically only to a "suit" coupled with a direction to the Registry to "treat a summary suit as an ordinary suit" would have substantial meaning. It merely enables a mistake committed in marking or admitting a suit as a summary one to be treated as a regular suit. It is a procedure for rectification by which the character of the suit changes. 5.7. While construing a provision, the basic Rule of interpretation is that such a provision either as a whole or in part conveys the purpose and meaning, intended by the legislation. A Court of law cannot ignore a provision to make it redundant, stale, unworkable and otiose. Considering the rule of harmonious construction, the Honourable Apex Court in UNION OF INDIA V. BRIGADIER P.S. GILL (2012) 4 Supreme Court Cases 463 has observed as follows: "17. Each word used in the enactment must be allowed to play its role howsoever significant or insignificant the same may be in achieving the legislative intent and promoting legislative object....." 5.8. Further more, a provision has to be read in the context of the scheme and not in isolation. The Honourable Apex Court, in O.P.SINGLA AND ANOTHER V. UNION OF INDIA AND OTHERS (1984) 4 Supreme Court Cases 450, has held as follows: "17. If the matter were to rest with the proviso, its interpretation would have to be that it does not prescribe a quota for direct recruits: it only enables the appointment of direct recruits to substantive posts so that, they shall not hold more than one-third of the total number of substantive posts in the Service. However, it is well recognised that, when a rule or a section is a part of an integral scheme, it should not be considered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other inter-related provision becoming otiose or devoid of meaning. That makes it necessary to call attention to the very next rule, namely, Rule 8. It provides by clause 2 that: The seniority of direct recruits vis-a-vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on. (emphasis supplied) This provision leaves no doubt that the overall scheme of the rules and the true intendment of the proviso to Rule 7 is that one-third of the substantive posts in the Service must be reserved for direct recruits. Otherwise, there would neither be any occasion nor any justification for rotating vacancies between direct recruits and promotees. Rule 8(2), which deals with fixation of seniority amongst the members of the Service, provides, as it were, a key to the interpretation of the proviso to Rule 7 by saying that the proviso prescribes quotas and reserves vacancies for both categories. The language of the proviso to Rule 7 is certainly not felicitous and is unconventional if its intention was to prescribe a quota for direct recruits. But the proviso, as I have stated earlier, must be read along with Rule 8(2) since the two provisions are interrelated. Their combined reading yields but one result, that the proviso prescribes a quota of one-third for direct recruits." Therefore, applying the rule of interpretation, we have no hesitation in holding that Order VII Rule 6 of the Original Side Rules cannot be imported into Order VII Rule 7. 5.9. What the appellant seeks before us is to avoid not only Order VII Rule 6 of the Original Side Rules but the other provisions of Order VII as well. In other words, what he seeks is a remedy notwithstanding the period of limitation provided under Order VII for making an application seeking leave to defend. Such a course adopted by the appellant cannot be permitted in law. As discussed above, the assessment of evidence can never be an issue under Order VII Rule 7 of the Original Side Rules. In other words, it is applicable only for a rectification of an earlier decision in admitting or marking a suit as a summary suit. It is akin to the power of review. This has to be decided based upon the averments in the plaint alone. Perhaps that is the reason why Order VII Rule of the Original Side Rules does not speak about leave at all. It does not deal with the right of the defendant to seek leave. On the contrary, it deals with proper exercise of the right of the plaintiff to maintain a summary suit. Therefore, we have no hesitation in holding that the defendant, who has not filed an application under Order VII Rule 6 of the Original Side Rules, cannot file an application under Order VII Rule 7 of the Original Side Rules seeking to raise issues covered in the earlier rule into the subsequent rule. Similarly he cannot be permitted to get over the period of limitation prescribed by making an application under Order VII Rule 7 of the Original Side Rules. The averments made in the present case are not sufficient to invoke Order VII Rule 7 of the Original Side Rules. In other words, the averments made by the appellant are not pertaining to non conformity of a summary suit covered under Order VII Rule 1 of the Original Side Rules. When the appellant has not filed the application under Order VII Rule 6 of the Original Side Rules within the time prescribed, then he loses his right to defend the suit. The moment such a right is lost, resultantly a right accrues to the plaintiff to get a decree on the averments made in the plaint. Such a right accrued is a vested right. It vests with the plaintiff under the statute. Therefore, it cannot be nullified by taking recourse to another provision, which does not authorise the defendant to seek leave on the basis of the evidence sought to be produced by him. MAINTAINABILITY OF THE APPLICATION:
5. 10. We are not inclined to go into the other issue raised by the learned counsel for the appellant that the learned Master is not competent to decide the application under Order VII Rule 7 of the Original Side Rules. This we do so, in view of the express provisions contained under Order XIV Rules 7 to 9 of the Original Side Rules, where the power is given to the Court to exercise. We are also aware of the fact that the learned Master is also a Court as defined under the Rules. Further more, as held by the Honourable Division Bench of this Court in D.GOPALAN V. RAGHAVA NAICKER (1990) 1 Law Weekly 15, it would not vitiate the order passed by the Court. The learned counsel appearing for the respondent also did not seriously dispute the power of the Court to deal with the application. Hence, we do not wish to decide the said issue.
6. MAINTAINABILITY OF THE APPEAL:- 6.1. Even though we are not inclined to allow this appeal for the reasons stated in the preceding paragraphs, as the learned counsel appearing for the respondent has raised the issue of maintainability, we wish to go into the same. The word "Judgment" has not been defined under the Letters Patent/Original Side Rules. While deciding this issue, we have to see the effect of the order which is made. In other words, the form of adjudication is not relevant but the consequence of such an order is. Considering the said issue, a Division Bench of this Court in RAJA SURYA RAO V. RAJA RAMA RAO (AIR 192.Madras 846), after quoting with approval of the earlier decision, has held as follows: "Without laying down any general proposition that a leave to sue is always a judgment under Clause 15 Letters Patent, and therefore subject to appeal, we think that in any particular case the proper test as to whether the order is or is not a judgment has been laid down by the late Chief Justice Sir Arnold White in Tuljaram Row V. Alagappa Chetti (3), a ruling which has been consistently adopted in this Court as laying down the guiding principle. There at p.7 he says: The test seems to me to be not what is the form of the adjudication but what is its effect in a suit or proceeding in which it is made. If its effect, whatever its form may be and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the proceeding so far as the Court 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, I think the adjudication is a judgment within the meaning of the clause. In that view it appears to us that is cannot be maintained with reason that the grant of leave to sue is not a judgment within the meaning of Cl. 15, Letters Patent, if the order has finally shut out the defendant from now applying or being heard on the question that the suit should have been so dismissed on the point of jurisdiction. If this refusal to dismiss the suit is in effect a final judgment against a dismissal of the suit on the ground of jurisdiction, a judgment which cannot be attacked in appeal because the matter of jurisdiction will not ex hypothesi be made a matter of issue in the suit, then it will in our view be a judgment within the scope of the test set out in Tuljaram Row V. Alagappa Chetti (3). But if the question of the jurisdiction of this Court to entertain the suit is still open for decision at the trial of the suit, then in our view the order passed is not of a final nature and would not be a judgment. Mr.Grant for the plaintiff stated before us that the plaintiff's position was that the question of jurisdiction is still open for decision on an appropriate issue in the suit. The defendant's learned vakil was doubtful if that was so and whether the order granting leave to sue did not finally dispose of the question of jurisdiction. That we think is not necessarily so. A Court has always jurisdiction to try on an appropriate issue in a suit whether it has jurisdiction or not to try the suit; that is to set in motion the process by which the various points at issue between the parties including that of jurisdiction fall to be decided." 6.2. The issue raised by the learned counsel appearing for the respondent is no longer res integra. Clause 15 of the Letters Patent appeal provides for an intra-court appeal. While considering such a clause, this Court cannot give a hyper technical interpretation to the word "judgment". In other words, a right created under the statute cannot be taken away. A judgment can be termed as a final judgment which brings a lis to an end. Similarly a preliminary judgment will decide the particular issue one way or other, even though the suit would continue. A preliminary judgment will also have an effect of adversely affecting the valuable right of the party. An interlocutory or internal judgment, which also directly affects the defendant in a case where he loses his right to defend and his remedy is confined only to contest the plaintiff's case, without being given a chance of rebut the evidence, is also appealable. Considering the said issue, the Hon'ble Apex Court in SHAH BABULAL KHIMJI V. JAYABEN D. KANIA (1981) 4 Supreme Court Cases 8 has held as follows: "113. Thus, under the Code of Civil Procedure, a judgment consists of the 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 formal 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 by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of section 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, therefore, 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 number of orders which would be appealable under the Letters Patent. It seems to us that the word 'judgment' has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds :. (1) A Final Judgment-a 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. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the Trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. (2) A preliminary judgment-This kind of a judgment may take two forms-(a) 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. Here also, as 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 the larger Bench. (b) Another shape which a preliminary judgment may take is that where the Trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res Judicata, a manifest defect in the suit, absence of notice under section 80 and the like, and these objections are decided by the Trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the Trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an R order even though it keeps the suit alive, undoubtedly 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 larger Bench. (3) Intermediary or Interlocutory judgment-Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of order 43 Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. 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. For instance, where the Trial Judge in a suit under order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an Order passed by the Trial Judge would not amount to a judgment within the meaning of clause 15 of the Letters Patent but will be purely an interlocutory order." 6.3. Similarly in SUBAL PAUL V. MALINA PAUL ((2003) 10 SCC 361.the Honourable Apex court has held as follows. "115. In Subal Paul v. Malina Paul this Court held:
32. While determining the question as regards clause 15 of the Letters Patent, the court is required to see as to whether the order sought to be appealed against is a judgment within the meaning thereof or not. Once it is held that irrespective of the nature of the order, meaning thereby whether interlocutory or final, a judgment has been rendered, clause 15 of the Letters Patent would be attracted.
33. The Supreme Court in Shah Babulal Khimji case deprecated a very narrow interpretation of the word judgment within the meaning of clause 15.
34. This Court said: (SCC pp. 45-46, para
82) A court is not justified in interpreting a legal term which amounts to a complete distortion of the word judgment so as to deny appeals even against unjust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals. In such cases, a just balance must be struck so as to advance the object of the statute and give the desired relief to the litigants, if possible.
35. In Shah Babulal Khimji case the Apex Court in no uncertain terms referred to the judgment under the special Act which confers additional jurisdiction on the High Court even in internal appeals from an order passed by the trial Judge to a larger Bench. Letters Patent has the force of law. It is no longer res integra. Clause 15 of the Letters Patent confers a right of appeal on a litigant against any judgment passed under any Act unless the same is expressly excluded. Clause 15 may be subject to an Act but when it is not so subject to the special provision the power and jurisdiction of the High Court under clause 15 to entertain any appeal from a judgment would be effective." 6.4. The abovesaid two judgments of the Honourable Apex Court were quoted with approval by the subsequent judgment in LIVERPOOL & LONDON S.P. & I.ASSN. LTD. V. M.V.SEA SUCCESS I (2004) 9 Supreme Court Cases 512, wherein it has been held as follows: "116. The view taken by the Calcutta and Bombay High Courts that an order passed in terms of Order 37 of the Code of Civil Procedure granting leave to defend would not be a judgment within the meaning of clause 15 of the Letters Patent may not be of much relevance............
120. The submission, however, to the effect that in the suit all defences would be open to the defendant, in our opinion, is misconceived inasmuch as, no evidence can be adduced in absence of any pleading. There may not, furthermore be any requirement to go into the trial if the plaint does not disclose a cause of action.
121. The contention that an order refusing to reject a plaint is one akin to an order amending the plaint would not be a correct proposition of law.
122. The question as to whether the defendant despite such an order refusing to reject a plaint will have a right to show that the case is false would again be of no consequence. The said submission, in our opinion, is based on a wrong premise.
123. An order refusing to grant leave to a defendant to defend the suit would be passed when it is found that the defence is a moonshine.
124. Clause 15 of the Letters Patent is not a special statute. Only in a case where there exists an express prohibition in the matter of maintainability of an intra-court appeal, the same may not be held to be maintainable. But in the event there does not exist any such prohibition and if the order will otherwise be a judgment within the meaning of clause 15 of the Letters Patent, an appeal shall be maintainable.
125. What would be a judgment is stated in Shah Babulal Khimji as under: (SCC p. 45, paras 80-81) 80. ... We think that judgment in clause 15 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.
81. An analysis of the observations of the Chief Justice would reveal that the following tests were laid down by him in order to decide whether or not an order passed by the trial Judge would be a judgment: (1) a decision which affects the merits of the question between the parties; (2) by determining some right or liability; (3) the order determining the right or liability may be final, preliminary or interlocutory, but the determination must be final or one which decides even a part of the controversy finally leaving other matters to be decided later. Therefore, in view of the said categorical pronouncements of the Honourable Apex Court, we have no hesitation in holding that an appeal against the decision rendered under Order VII Rule 7 of the Original Side Rules is certainly appealable under Clause 15 of the Letters Patent.
7. DISCUSSIONS ON FACT:- In the case on hand, the appellant has given a solemn undertaking before the Court. The undertaking is not conditional. Therefore, we are of the view that Section 58 of the Indian Evidence Act, 1872 will have to be pressed into service. The fact alleged by the plaintiff regarding the quantum of money payable on cheques has been admitted in writing by the appellant. We do not find any merit in the defence sought to be raised by the appellant in the application filed under Order VII Rule 7 of the Original Side Rules to the effect that he was forced to give such an undertaking. Admittedly, the undertaking has been signed, both by the counsel and the appellant. We do not find any coercion or undue influence involved therein. Therefore, in view of the admission, the fact alleged by the plaintiff need not be proved in accordance with Section 58 of the Indian Evidence Act, 1872. Therefore, we respectfully concur with the findings of the learned single Judge on merits. We also reject the submission of the learned counsel for the appellant made in his reply before us on the application said to have been made under Order VII Rule 6 of the Original Side Rules which was said to be not represented after return. The said issue is not before us. More over the present application under Order VII Rule 7 of the Original Side Rules has been filed subsequently. Hence, the appellant has duly given up his earlier application. Above all, the present application was considered on merits as warranted by him and dismissed. The appellant has not also raised any issue about the earlier application which was not represented before the learned single Judge.
8. In the result, the Original Side Appeal fails and the same is dismissed. No costs. Consequently, connected miscellaneous petition is also closed. raa