Satish Chandra Vs. Sanjay Katyal - Court Judgment

Excerpt:
in the instant case that involved an application filed under order 9 rule 13 of the civil procedure code, 1908, it was held that the interlocutory order that had directed the defendant to adduce evidence with regard to an issue arising for the disposal of said application was not a judgment - thereforee, the said order could not be a subject matter of appeal - k.s. gupta, j.(1) in this appeal filed by the plaintiff-appellant the challenge is to the order dated december 16,1996 of learned single judge whereby the appellant has been directed to lead evidence first on issue no. 2. (2) it is admitted case of the parties that the appellant filed suit for specific performance of the alleged agreement, dated may 13, 1988, which was decreed exparte against the defendant-respondents by the judgment dated december 12,1991. is no. 9245/92 under order ix rule 13, civil procedure code was filed by the respondent on june 29,1992. for setting side the ex-parte judgment which application is being contested by the appellant. following issues were framed m november, 1992 : 1. whether the application for setting aside the order dated august 3, 1989 and the decree dated december 12, 1991 is within time 2. whether the defendants were duly served 3. if issue no. 2 is held in favor of the decree holder then whether there is sufficient cause for setting aside the ex-parte decree against the j.ds.(3) modification of the issues was sought by the appellant in is no. 14174/92, which was rejected on march 5,1993. as appeal against the said order (fao (os) no. 140/93) was also dismissed by division bench of this court on february 15, 1996. learned single judge thereafter directed the respondents' application to be set down for evidence. the plaintiff-appellant was called upon to lead evidence. at that stage learned single judge through the impugned order decided the controversy as to who should lead evidence first. (4) relying on the decision in shah babulal khimji v. jayaben d. kania & another, : [1982]1scr187 , a preliminary objection has been raised on behalf of the respondents in regard to the maintainability of the appeal against the impugned order. we heard learned counsel for the parties on this point on march 27,1997 and directed the case to the posted for today for orders on the question of maintainability of appeal. on april 1,1997 the appellant moved c.m. 1235/97 seeking to address additional arguments on the points mentioned in the application. we have also taken into consideration the points mentioned in the application. (5) law law down in shah babulal khimji's case (supra) in paras ll4 & 115 of the report on page 1816, which is relevant reads as under: 'in the course of the trial, the trial judge may pass a number of orders whereby some of the various steps to taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g. an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents after the first date of hearing, an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a (sic.) of the order passed against the party concerned in the appeal against the final judgment passed by the trial judge. thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. similarly, orders passed by the trial judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.'(6) learned counsel for the appellant contended that evidence on issue no. 1 of limitation should start first, which is a jurisdictional issue and calling upon the appellant to lead evidence on issue no. 2 first and then postponing the evidence of respondents on other issues is likely to cause prejudice to the appellant. it was contended that illustrations 1 and 5 in para 120 at page 1817 of the report in shah babulal khimji's case (supra) fully covers the appellants point that doing or undoing a limitation question when one has acquired a vested right is judgment within the meaning of letters patent clause 10, applicable to this court. (7) neither illustration 1, nor illustration 5 relate to the question before us. the supreme court in para 122 observed that illustrations given are by way of a sample and it was not possible to give exhaustive list as may cover all possible cases where order may or may not amount to judgment. each case will have to be decided m the light of the tests, observations and principles enunciated in the judgment in shah babulal khimji's case (supra). (8) there can be no manner of doubt that in order to decide la no.9245/92 filed under order ix rule 13, civil procedure code etc. the aforesaid issues including issue of limitation will have to be decided together, after the parties have led their respective evidence. impugned order requiring the appellant to adduce evidence on issue no. 2 first is only procedural in nature. neither this order puts an end to the proceedings nor to the application under order ix rule 13, cpc. the effect of the order, if not complied with cannot result in terminating the proceedings and, thereforee, it cannot be regarded as a judgment within the tests laid down by sir white, c.j. in t.v. tuljaram row v. m.k.r.v. alagappa chettiar, ilr(1912) 35 madras i, as approved in shah babulal khimji's case (supra). (9) appeal accordingly is not legally maintainable and is dismissed as such. in the circumstances, there will be no order as to costs.