2000(2) ALL MR 434
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

B.P. SARAF AND R.P. DESAI, JJ.

Ramdil Resorts Pvt. Ltd. & Ors., Vs. Videocon International Ltd. & Ors.,

Letters Patent Appeal (ST.) No. 6476 of 1999

29th June, 1999

Petitioner Counsel: R.S. MOHITE
Respondent Counsel: R.D. SONI

Letters Patent (Bombay), Cl.15 - Civil P.C. (1908), Ss.2(9) 24 - Word "judgment" in Cl. 15 - Import and meaning - Order refusing to transfer suit from one court to the other court - Order does not affect merits of controversy between the parties - Hence it is not a 'judgment' and is not appealable.

An order for transfer or an order refusing to transfer neither affects the merits of the case between the parties by determining some rights or liabilities nor it affects the merits of the controversy between the parties in the suit. It does not terminate or dispose of the suit in any manner. Such an order does not affect vital and valuable rights of the parties. It does not contain the traits and trappings of finality. An order for transfer or order refusing to transfer a suit from one Court to another, therefore, cannot be regarded as "judgment" within the meaning of Clause 15 of the Letters Patent and such an order, therefore, would not be appealable under the said clause. The impugned order in the present case, by which the application of the appellants for transfer of the suit from Ahmednagar to the Court of Civil Judge, Senior Division, Satara has been rejected, does not affect the merits of the controversy between the parties and, therefore, is not a "judgment" within the meaning of Clause 15 and hence not appealable.

AIR 1953 SC 198 and AIR 1981 SC 1786 Rel. on. [Para 6]

Cases Cited:
Asrumati Debi Vs. Rupendra Deb, AIR 1953 SC 198. [Para 2,5]
Shah Babulal Khimji Vs. Jayaben,, 1983(1) Bom.C.R. 37 : AIR 1981 SC 1786. [Para 2]
Laxman Bala Surve Vs. M/s. Posh Builders, 1997(1) ALL MR 144=1997(1) Bom.C.R. 115 : 1996(2) Mh.L.J. 858 [Para 2]
Union of India Vs. Mohinder Supply Co., AIR 1962 SC 256 [Para 5]
Shankarlal Aggarwala Vs. Shankarlal Poddar, AIR 1965 SC 507 [Para 5]
Radhe Shyam Vs. Shyam Behari, AIR 1971 SC 2337. [Para 5]
Shanti Kumar R. Canji Vs. Home Insurance Co. of New York, AIR 1974 SC 1719 [Para 5]


JUDGMENT

Dr. B. P. SARAF, J.:- By this appeal under Clause 15 of the Letters Patent, the appellants seek to challenge the order dated 27th January 1999 of the learned Single Judge rejecting their application for transfer of the suit filed by the respondents at Ahmednagar to the Court of Civil Judge, Senior Division, Satara, where they had filed their suit.

2. Mr. R.D. Soni, learned Counsel for the respondent, raised a preliminary objection that this appeal is not maintainable under Clause 15 of the Letters Patent because the impugned order of the learned Single Judge refusing to transfer the suit to another Court is not a judgment within the meaning of Clause 15 of the Letters Patent. In support of this contention, he placed reliance on the decision of the Supreme Court in (Asrumati Debi v. Rupendra Deb (A.I.R. 1953 S.C. 198 and (Shah Babulal Khimji v. Jayaben), 1983(1) Bom.C.R. 37 : A.I.R. 1981 S.C. 1786 and the decision of this Court in {Laxman Bala Survey. M/s. Posh Builders, 1997(1) Bom.C.R. 115 : 1996(2) Mh.L.J. 858 : (1997(1) ALL MR 144).

3. In reply, Mr. Mohite, learned Counsel for the appellants, submitted that the refusal to transfer the suit to another Court has a bearing on the Court's jurisdiction and hence the impugned order would constitute "judgement" within the meaning of Clause 15 of the Letters Patent.

4. We have given our careful consideration to the rival submissions. Clause 15 of the Letters Patent, so far as relevant, reads :

"Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction. And we do further ordain that an appeal shall lie to the said High Court of Judicature of Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the super intendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court."

(Emphasis supplied.)

It is clear from a plain reading of Clause 15 of the Letters Patent that appeal lies under that clause to the High Court of Bombay from the judgment of a Single Judge except those which are specifically excluded. There is no dispute on that count. The controversy is in regard to the true import, definition and meaning of the word "judgment".

5. It is true that there was a serious controversy about the true meaning and purport of the word "judgment" used in Clause 15 of the Letters Patent. The meaning of this word was the subject matter of conflicting decisions of various High Courts for almost a century and there was no unanimity in spite of such length of time. A very strict and narrow interpretation had been placed by the Calcutta High Court under which orders deciding matters of moment or valuable right of parties without finally deciding the suit would not amount to "judgment" and hence not appealable . The above view was also followed by this Court. On the other hand, the Madras High Court had taken too liberal an approach in the matter. Some of the courts like Allahabad and Nagpur took the middle path. The meaning and import of the word "judgment" also came to be considered by the Supreme Court in Asrumati Devi v. Kumar Rupendra Deb., A.I.R. 1953 S.C. 198 ; (Union of India v. Mohinder Supply Co.), A.I.R. 1962 S.C. 256, (Shankarlal Aggarwala v. Shankarlal Poddar), A.I.R. 1965 S.C. 507, (Radhe Shyam v. Shyam Behari), A.I.R. 1971 S.C. 2337 and (Shanti Kumar R. Canji v. Home Insurance Co. of New York), A.I.R. 1974 S.C. 1719. In Shanti Kumar R. Canji (supra), the Supreme Court observed that in finding whether the order is a judgment within the meaning of Clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. It was further observed that the nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. All these decisions in regard to the meaning and import of the word "judgment" in Clause 15 of the Letters Patent ultimately came to be considered by a three-Judge Bench of the Supreme Court in Shah Babulal Khimji v. Jayaben (supra). In that case, the Supreme Court made it clear at the outset that Letters Patent being a special law which carves out its own sphere, it would not be possible to project the definition of "judgment" appearing in section 2(9) of the Code of Civil Procedure, 1908 which defines judgment to mean "the statement given by the Judge on the grounds of a decree or order", into the Letters Patent. It was observed (at P. 1815).

"The intention, therefore, of the givers of the Letters Patent was 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."

The Supreme Court classified "judgments" in three categories, viz. (i) a final judgment, (ii) a preliminary judgment, and (iii) intermediary or interlocutory judgment, and observed that while final judgments and preliminary judgments would be "judgments" within the meaning of the Letters Patent, so far as intermediary or interlocutory judgments are concerned, every interlocutory order cannot be regarded as a judgment. Only those interlocutory 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. It was stated that in order to be a judgment, such an order must contain the traits and trappings of finality either when the order decides the question in controversy in an ancillary proceedings or in the suit itself or in a part of the proceedings.

6. We may now proceed to examine in the light of guidelines contained in the judgment of the Supreme Court in Shah Babulal Khimji v. Jayaben (supra), the question whether an order refusing to transfer the suit from one Court to the other Court is a "judgment" within the meaning of Clause 15 of the Letters Patent. Obviously, such an order neither affects the merits of the case between the parties by determining some rights or liabilities nor it affects the merits of the controversy between the parties in the suit. It does not terminate or dispose of the suit in any manner. Such an order does not affect vital and valuable rights of the parties. It does not contain the traits and trappings of finality. An order for transfer or order refusing to transfer a suit from one Court to another, therefore, cannot be regarded as "judgment" within the meaning of Clause 15 of the Letters Patent and such an order, therefore, would not be appealable under the said clause. The impugned order in the present case, by which the application of the appellants for transfer of the suit from Ahmednagar to the Court of Civil Judge, Senior Division, Satara has been rejected, does not affect the merits of the controversy between the parties and, therefore, is not a "judgment" within the meaning of Clause 15 and hence not appealable.

7. We are supported in our above conclusion by the decision of the Supreme Court in Asrumati Debi v. Rupendra Deb (supra). In that case the controversy was whether the order of transfer of suit made under Clause 13 of the Letters Patent was a "judgment". The Supreme Court held that it was not a judgment within the meaning of Clause 15 and, therefore, was not appealable. It was observed:

"The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground ........ ....An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which let to the order of rejection. On the other hand, an order of transfer under Clause 13 of the Letters Patent is in the first place, not all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter, to be, taken only from the stage at which they were left in the Court in which the suit was originally filed."

8. In the premises, we are of the clear opinion that the impugned order of the learned Single Judge refusing to transfer the suit from Ahmednagar Court to the Court of Civil Judge, Senior Division, Satara, is not a "judgment" within the meaning of Clause 15 of the Letters Patent and hence not appealable.

9. The appeal is, therefore, dismissed as not maintainable. It is disposed of accordingly with no order as to costs.

Appeal dismissed.