Harilal Ramji Doshi vs Manilal Sunderji Doshi on 4 April, 1985

Bombay High Court
Harilal Ramji Doshi vs Manilal Sunderji Doshi on 4 April, 1985
Equivalent citations: (1986) 88 BOMLR 707
Author: V Vaze
Bench: S Desai, V Vaze


V.V. Vaze, J.

1. Harilal Ramji Doshi took out a Summons for Judgment on January 23, 1979 in Summary Suit No. 1340 of 1978 filed by him on the basis of a deed of retirement dated September 23, 1975. The plaintiff Harilal had alleged that he, the defendants and one Nyalchand Mulji Doshi were carrying on business in partnership under a deed of partnership dated June 17, 1965. Certain disputes and differences arose between the partners which having been resolved they agreed that the plaintiff should be deemed to have retired from the partnership and that the defendants would pay to the plaintiff certain sums which compromise was incorporated in the deed of retirement dated September 23, 1975. The plaintiff averred that he is entitled to the principal amount of Rs. 2,40,000/- with interest of Rs. 99,200/- and after giving a credit of Rs. 35.000/- received from the defendants, he claimed Rs. 3,04,200/- as due and payable by the defendants.

2. An affidavit in support of summons for judgment was filed by the plaintiff Harilal to which an affidavit in reply came to be filed by defendants Manilal Sunderji Doshi which again was followed by an affidavit of Harilal in rejoinder.

3. On June 15, 1979, Lentin, J. in chamber granted leave to the defendants to defend the suit on the defendants’ depositing in court a sum of Rs. 50,000/- within eight weeks. The learned Judge gave directions for filing written statement, discovery and inspection and ordered the suit to stand transferred to the list of long causes on such deposit being made. Aggrieved, the Original plaintiff-Harilal has filed the present Letters Patent Appeal.

4. The respondents have taken a threshold objection regarding the maintainability of this Letters Patent Appeal against a routine interlocutory order and in support have relied on the following passage from Shah Babulal Khimji v. Jayaben D. Kania .

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 plaintiffs 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 Letter 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.

Realising that the above example given by the Supreme Court applied squarely to the facts of the present appeal Mr. Chagla, learned Counsel for the appellant, canvassed at the bar that the hypothetical situation illustrated by the Supreme Court was rendered per incuriam. Counsel pressed into service Gordon v. Cradock 1964 (1) Q.B. 503 wherein a similar situation was considered:

Suppose the defendant, as well as the plaintiff, had wished to appeal against the order made by the Judge (the order being one refusing him unconditional leave to defend), he would, admittedly, have an absolute right of appeal. On the defendants arguments, the plaintiff would have no right to cross appeal unless leave were obtained. That would seem to me to be a very strange result, and, for my part I do not think that it is a result which follows from the words of the Statute if they are construed in accordance with their ordinary sense.

5. This argument of Mr. Chagla can be traversed by a terse statement that it does not belong to a High Court to disregard a decision of the Supreme Court by applying to it the label per incuriam. (See Assistant Collector of Central Excise, Chandan Nagar, W.B. v. Dunlop India Ltd. ).

6. In the result, the appeal being not maintainable is dismissed with no order as to costs. Before parting with the matter, however, we would like to observe that there is some justification in the appellant’s (original plaintiff’s) grievance that the condition imposed, namely, to deposit Rs. 50,000/- errs on the side of undue leniency. Mr. Chagla has demonstrated with some success the lack of substance in some of the defences indicated in the affidavit in reply to the Summons for Judgment. In the circumstances we are of the opinion that this is an eminently fit matter where direction may be given for expeditious disposal of the suit. Accordingly we direct that the suit be disposed of as expeditiously as possible and in any case on or before December 24, 1986. Liberty to the plaintiff to bring this order to the attention of the appropriate court and to apply for a fixed date of hearing.

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