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Calcutta High Court
Mridul Kanti Majumder vs Smt. Jyotsna Bal & Ors. on 14 August, 2000
Equivalent citations: (2001) 1 CALLT 285 HC
Author: T Chatterjee
Bench: T Chatterjee, A Lala


JUDGMENT

T. Chatterjee, J.

1. By consent of parties, this appeal is treated as on day’s list and is taken up for hearing along with the application for stay.

2. This appeal is preferred against an order dated 28th August. 1997 passed on an application filed by the respondents for recalling of an order passed by a learned Judge on 12th February, 1997. It is an admitted position that an application under Clause 13 of the Letters Patent filed at the instance of the appellant was disposed of by an order dated 24th February 1997 by transferring a probate suit being O.S. No. 10 of 1997 which was pending before a learned Judge at Alipore 24-Parganas (South) to this Court.

3. After careful examination and on perusal of the order dated 24th February, 1997 passed by the learned trial Judge transferring the Probate suit to this Court in the exercise of the power under clause 13 of the Letters Patent, it appears to us that on that very date the application under clause 13 of the Letters Patent was disposed of by treating the same as on that day’s list as no leave to file counter was sought for on behalf of the respondents. Subsequently on the basis of the aforesaid order, the suit being O.S. No. 13 of 1997 stood transferred to this Court. In the month of June. 1997 an application for recalling of the aforesaid order dated 24th February, 1997 was filed at the instance of the respondents on the ground that no authorisation was given to Mr. Amal Kr. Mitra, a learned advocate of this Court at the time the order dated 24th February. 1997 was passed. The learned trial Judge however, asked Sri Mitra whether he had instruction to appear on behalf of the respondents at the time, the transfer order was passed. The answer was in the negative. Relying thereon, the learned trial Judge allowed the application for recalling. Feeling aggrieved by this order, the present appeal has been preferred at the instance of the appellant.

4. We have heard Mr. Bachawat, the learned counsel for the appellant, Mr. P.N. Chatterjee, the learned senior counsel for the respondent and Mr. Roy, the learned counsel for the respondent Nos. 2 and 3. After going through the materials on record, we are of the view that the order of recall ought not to have been passed by the trial Court without taking evidence from both sides including the evidence of the learned counsel Mr. Mitra who alleged to have appeared for the respondents at the time the order dated 24th February, 1997 was passed by the trial Court. It is an admitted position that Mr. Mitra, the learned counsel, had appeared for the respondents in other matters. It is also on record that a revisional application was moved in this Court from an order of the trial Court before which the original suit for probate was pending in which Mr. Mitra came forward and said that in view of the order of transfer passed by the learned trial Judge in the original side of this Court and in view of the admitted fact that the suit has already stood transferred to this Court, the revisional application could not be heard. Accepting such submission of Mr. Mitra who appeared for the respondents before the revisional Court, the revisional application was sent out of list by a learned Judge who was then taking revisional application. It is difficult at this stage without taking evidence of the parties including the evidence of Mr. Mitra, the learned advocate who admittedly, after appearing in so many matters for the respondents and also after passing of so many interlocutory orders in the present suit, came up before this Court and submitted that he had no instruction to appear when the order under Clause 13 of the Letters Patent was passed by the trial Court. Accepting this submission of Mr. Mitra, the trial Court allowed the application for recall and directed the application under Clause 13 to be re-heard. From the above, in our view, a serious dispute arose as to whether Mr. Mitra, the learned counsel who had appeared on the date the application under clause 13 was allowed, had in fact, any instruction to appear on behalf of the respondents when admittedly Mr. Mitra had appeared for the respondents in other matters including the matter in which the revisional application on his prayer was sent out of the list by a learned Judge of this Court relying on the aforesaid order allowing the application under clause 13 which was produced by Mr. Mitra. Considering the background of this case, we are of the view that the application for recall ought not to have been disposed of without taking evidence by the trial Court in which Mr. Mitra shall figure as a witness to justify his subsequent statement that he was not authorised to appear before the trial Court on the date the clause 13 matter was disposed of. We are surprised to note that the application for leave was allowed and the suit filed before 24-Parganas Court was transferred to the Original Side of this Court without any prayer from the side of Mr. Amal Kr. Mitra who appeared for the respondents to pray for directions for filing affidavits. We are also surprised to note that even if Mr. Mitra had any instruction to appear for the respondents on the returnable date of the application under Clause 13 of the Letters Patent, it could not be allowed without a prayer being made by Mr. Mitra to file affidavit to the application under clause 13 of the Letters Patent. Accordingly, we set aside the order under appeal and direct the trial Court to dispose of the application for recall by taking evidence in which Mr. Mitra, the learned advocate shall be one of the witnesses for the purpose of deciding whether he had, in fact, then been authorised to act on behalf of the respondents. It would be open to the appellant as well as to the respondents to adduce evidence on the aforesaid question. Before we part with this order, a submission made by Mr. Chatterjee, the learned counsel for the respondent No. 1 that the appeal was not maintainable in view of the fact that the order under appeal cannot be a “Judgment” within the meaning of clause 15 of the Letters Patent may be considered. By the order under challenge in this appeal, the trial Court had recalled the earlier order by which leave under clause 13 of the Letters Patent was allowed and a probate suit being O.S. No. 13/97 which was pending outside the territorial Jurisdiction of this Court has been brought within the jurisdiction of this Court for decision. In our view, by the order of transfer of the original suit to this Court in the exercise of power under clause 13 of the Letters Patent, some right has accrued to the appellant to proceed with the probate suit now pending in this Court which would be certainly taken away and, therefore, in our opinion, this order must be construed to be a “Judgment” within the meaning of clause 15 of the Letters Patent. We are not unmindful of the decision of the Supreme Court in the case of Ashrumati Devi v. Rupendra Devi and others in which it has been held that an order for transfer of a suit made under clause 13 of the Letters Patent is not a “judgment” within the meaning of Clause 15, and, therefore, not appealable. In the same decision, the apex Court of our country at paragraph 12 has observed as follows :–

“As stated already, it is not our purpose in the present case to frame an exhaustive definition of the word “judgment” as used in Clause 15 of the Letters Patent. We have indicated what the essential features of a “Judgment” are according to both the Calcutta and the Madras High Courts and all that we need say is, that in our opinion, an order under clause 13 of the Letters Patent does not satisfy the tests of a “judgment” as formulated by either of these High Courts.”

5. The Supreme Court in that decision also observed as follows :–

“It cannot be said, therefore that according to Sir Richard Couch, every judicial pronouncement on a right or liability between the parties is to be regarded as a judgment. For in that case there would be any number of judgments in the course of a suit or proceedings each one of which could be challenged by way of appeal. The judgment must be the final pronouncement which puts an end to the proceedings so far as the Court dealing with it is concerned. It certainly involves the determination of some right or liability though it may not be necessary that there must be a decision on the merits.”

6. In that decision the observation of Sir Richard Couch was accepted by the Supreme Court and the said observation however, would be relevant for our purpose.

“A decision which effects 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 case or suit and the preliminary or interlocutory Judgment determines only a part of it leaving other matters to be determined.”

7. The aforesaid decision of the Supreme Court and also of Sir Richard Couch were subsequently taken into consideration by a Division Bench of this Court in the case of Rawatmal v. R.T. Co. . In paragraph 16 of the above decision, this Court observed as follows :–

The definition enunciated in the aforesaid case was certainly not exhaustive and the Court has to make up its mind every time the question arises as to whether a particular order is a judgment within the meaning of clause 15 of the Letters Patent regard being had to the nature of the order. An order cannot be a judgment if it leaves the merits of the question undecided. To be a judgment it must affect the merits of the dispute between the parties deciding some light or liability.”

(Emplasis supplied)

8. From the aforesaid observation of the Division Bench, it is, therefore, clear that there is no straight Jacket formula for which it can be safely held by the Court that a particular order is a “judgment” within the meaning of clause 15 of the Letters Patent. Therefore, from the aforesaid observation of the Supreme Court as well as of the Division Bench of this Court, we may safely conclude that in order to come to a positive finding as to whether a particular order is a “judgment” within the meaning of clause 15 of the Letters Patent, regard has to be given to the nature of the order. It is, therefore, the order which will speak whether the same is a Judgment or not. So far as the impugned order under challenge is concerned, we are of the view that the order impugned should be construed to be a “judgment” within the meaning of clause 15 of the Letters Patent. By an order dated 24th February, 1997 the original probate suit was transferred to this Court under Clause 13 of the letters Patent. The respondent made an application for recall of that order. Admittedly steps were taken by both the parties in the transferred suit and if at this stage the said order is recalled, the right of the appellant to proceed with the original suit now transferred to this Court shall be curtailed.

9. In the case of Shah Babulal Khimji v. Jayaben, , the apex Court of our country observed as follows :–

“Whenever, a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a “judgment” within the meaning of the Letters Patent. Every 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.”

10. In this case, applying the principles as laid down in the aforesaid decision of the Supreme Court, we are of the view that the right of the appellant to proceed with the transferred suit to this Court will be taken away if the order under challenge is set aside and the the application under clause 13 of the Letters Patent is allowed to be reheard. Therefore, in our view, this would affect the vital and valuable rights of the parties to proceed with the transferred suit in this Court and would work serious injustice to the appellant. That being the position, we are of the view that the order under challenge in this Appeal is a “judgment” within the meaing of clause 15 of the Letters Patent and accordingly, we overrule the objection raised by Mr. P.N. Chatterjee that the order under appeal is not a “judgment” within the meaning of clause 15 of the Letters Patent.

11. For the reasons aforesaid, we set aside the order under appeal and remand the case back to the trial Court for rehearing of the application when evidence from both sides including the evidence of Mr. Mitra, the learned counsel who appeared before the Court for the respondents at the lime the original order was passed should be taken and thereafter the matter shall be disposed of in accordance with law. If time permits, the learned trial Judge is requested to dispose of the said application for recall as early as possible preferably within a period of four weeks from the date of communication of this order without granting any adjournment.

12. Accordingly, the appeal is allowed to the extent indicated above and the impugned judgment and order is set aside.

13. Let there be an order of status quo as of date till one week after Puja Vacation or until further order, whichever is earlier.

14. Both the appeal and the application are disposed of a accordingly. Filing of Paper Book is dispensed with. All undertakings given by the appellant in the appeal stand discharged.

Xerox certified copy of this Judgment will be supplied to the parties by the department within seven days from the date of putting in requisition for drawing up and completion of the order as well as the certified copy thereof.

All parties are to act on a xerox signed copy of this operative part of the Judgment upon usual undertaking and as per the satisfaction of the officer of this Court,

A Lala, J.

15. I agree.

16. Appeals disposed of


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