Appeal No 92 of 1952
Appeal by special leave from the Judgment and Order dated 16th May 1951 of the High Court of Judicature at Calcutta Harries C J and Das J in Appeal from Original Order No 136 of 1949 arising out of Judgment and Order dated the 25th April  1949 of the said High Court Banerjee J in Extra ordinary Suit No 2 of 1948
N C Chatterjee B Sen with him for the appellant
section P Sinha A K Dutt with him for the respondent
February 27
The Judgment of the Court was delivered by MUKHERJEA J
This appeal which has come before us on special leave is directed against a judgment of an Appellate Bench of the Calcutta High Court dated the 16th May 1951 by which the learned Judges dismissed an appeal taken against an order made by a single Judge on the Original Side of that Court under clause 13 of the Letters Patent on the preliminary ground that the appeal was not competent in law
There is no dispute about the material facts of the case which lie with in a short compass
On 7th August 1947 a suit was filed by the respondent Kumar Rupendra Deb Raikot in the Court of the Subordinate Judge at Jalpaiguri in West Bengalbeing Title Suit No 40 of 1947for recovery of possession of a large estate known as Baikunthapur Raj situated in that district on the allegation that he being the eldest son of late Prosanna Deb Raikot the last holder of the estate became entitled to the properties on the I death of his father under a custom of the family which excludes all females from inheritance and follows the rule of Iineal 1161 primogeniture in matters of succession
Prosanna died in December 1946 and Asrumati Debi the appellant before us is admittedly his widow
There was no son born to her and her only child is a daughter named Prativa
According to the plaintiff respondent his mother Renchi Debi who is a Lepcha by birth was another lawfully wedded wife of Prosanna and was married to the latter in what is known as the  Gandharba form
Prosanna had three sons by this wife the plaintiff being the eldest
Asrumati it is alleged took possession of the bulk of the properties comprised in the estate on the death of her husband although she had no legal right to the same and it was to evict her from these properties that this suit was brought
Besides Asrumati the plaintiff also impleaded three other agnatic relations of the deceased who are defendants Nos 2 to 4 and also his own two younger brothers as defendants to the suit
Asrumati filed her written statement on January 19 1948 and the main defence put forward by her was that there was no legal marriage between her husband and the plaintiff s mother the latter being only one of the several mistresses of her husband
She denied that there was any custom in the family under which females were excluded from inheritance
The defendants 2 to 4 also filed written statements challenging the legitimacy of the plaintiff and his claim to succession and put forward their own rights as heirs under the customary law obtaining in the family
On 30th April 1948 the plaintiff presented an application in the Original Side of the High Court of Calcutta under clause 13 of the Letters Patent praying for transfer of the suit filed in the Jalpaiguri court to the High Court to be tried in its Extraordinary Original Civil Jurisdiction
This application was heard by Banerjee J sitting singly and by his order dated the 25th of April 1949 the learned Judge allowed the application substantially on the ground that having regard to the atmosphere of prejudice that was created in the locality by supporters of the defendant who wielded 1162 considerable influence in the district the plaintiff might have a legitimate apprehension that he would not get fair trial in the district court
Against this decision the defendant No 1 took an appeal to the Appellate Bench of the High Court of Calcutta and the learned Judges Trevor Harries C J and Das J dismissed the appeal on the ground that the order appealed again was not a judgment  within the meaning of clause 15 of the Letters Patent
It is the propriety of this decision that has been challenged before us in this appeal
The High Court of Calcutta in holding the appeal before it to be incompetent based its decision entirely upon an earlier pronouncement of a Division Bench of the same court where it was held by Mookerjee ACJ sitting with Fletcher J that an order for transfer of a suit made under clause 13 of the Letters Patent was not a judgment  within the meaning of clause 15 1
Reliance was placed by the learned Judges for this view upon the pronouncement of Sir Richard Couch C J in the well known and often cited case of The Justice of the Peace for Calcutta vs The Oriental Gas Company 2 where the learned Chief Justice said as follows 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
 The identical question whether an order for transfer under clause 13 of the Letters Patent is a judgment  for purposes of appeal was pointedly raised before the Madras and the Rangoon High Courts and while the Madras High Court 3 answered the question hi the affirmative a definitely negative answer was given by 1 See Khatizan vs Sonairam ILR 2 8 Ben
LR 433
3 Vide Krishns Reddi vs Thanikacha ILR 47 Mad
136 1163 the Rangoon High Court 1
The Madras decision purports to be in accordance with the view enunciated a Full Bench of that court in Tuljaram vs Alagappa2 where Sir Arnold White C J sitting with Krishna swami Aiyar and Ayling JJ
formulated a definition of judgment  in a comprehensive manner differing fro the wide interpretation put upon the term in the earlier case of DeSouza vs Coles 3
The test seems me thus observed the learned Chief Justice to be not what is the form of the adjudication but what is its effect on the 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 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
 This decision it may be pointed out has not only been adhered to in Madras since then without any comment but the Calcutta High Court has in several instances manifested a marked leaning towards it 4
On the other hand a Full Bench1 of the Rangoon High Court presided over by Page CJ took a view altogether different from that of the Calcutta and the Madras High Courts as regards the meaning of the word I judgment  in clause 13 of the Rangoon Letters Patent which corresponds to clause 15 of the Letters Patent of the Calcutta and Madras High Courts
It was held by the Full Bench of the Rangoon High Court that the term judgment  in the Letters Patent means and is a decree in a suit by which the rights of the parties in the suit are determined
In other words judgment  is not what is defined in section 2 9 of the Civil Procedure Code as being the statement given by the judge of the grounds of a decree 1 Dayabhai vs Muyugappa Chettiay 13 Rang
457 FB
2 35 M 1 FB
3 4 Vide Muathura Sundari vs Haran Chandra ILR 43 Cal
857 Chandi Charan vs Jnanendra 29 CLJ 225 at 229 Lea Badin vs Upendra Mohan Roy Chaudhury 1164 or order but is a judoment in its final and definitive sense embodying a decree
A final  judgment is an adjudication which conclusively determines the rights of the parties with regard to all matters in issue in the suit whereas a preliminary or interlocutory judgment is a decree by which the right to the relief claimed in the suit is decided but under which further proceedings are necessary before a suit in its entirety can be disposed of
Save and except final and preliminary judgments thus defined all other decisions are  orders  and they do not come within the description of I judgments  under the relevant clause of the Letters Patent
No order  is appealable unless an appeal is expressly provided against it by the Civil Procedure code or some other Act of the Legislature
In this view an  order  for transferring a suit from a subordinate court to the High Court could not possibly be regarded as a judgment  and consequently no appeal would lie against such an order
This definition of  judgment has been accepted in several cases by the Nagpur High Court 1 and substantially this seems to be the view of the Allahabad High Court also 2
A Full Bench of the Lahore High Court  however has refused to accept this view and has preferred to follow the tests enumerated by the Calcutta and the Madras High Courts
The Bombay High Court accepted the Calcutta view from the very beginning 4
In view of this wide divergence of judicial opinion it may be necessary for this court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word I judgment  as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts
We are however relieved from embarking 1 Vide Kunwar Lal Singh vs Uma Devi AIR 1945 Nag
156 Shankar Deo vs Kalyani AIR 1948 Nag 85
2 Vide Shahzadi Begam vs Alakhnath 57 All
983 FB 3 Shaw Hari vs Sonah Mal Beli Ram ILR  4 Vide Sonebai vs Ahmedbhai  1165 on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us be regarded as a judgment  within the meaning clause 15 of the Letters Patent
Couch CJ as said already defined judgment  be a decision which determines some right or liability affecting the merits of the controversy between the parties
It is true that according to the learned Chief Justice an adjudication in order that it might rank as a judgment  need not decide the case on its merits but it must be the final pronouncement of the court making it the effect of which is to dispose of or terminate the suit or proceeding
This will be apparent from the following observations made by Couch CJ in the course of his judgment in the case referred to above   It is however said that this court has already put a wider construction upon the word I judgment  in clause 15 by entertaining appeals in cases where the plaint has been rejected as insufficient or as showing that the claim is barred by limitation and also in cases where orders have been made in execution
These however are both within the above definition of a judgment and it by no means follows that because we hold the order in the present case not to be appealable we should be bound to hold the same in the cases referred to
For example there is an obvious difference between an order for the admission of a plaint and an order for its rejection
The former determines nothing but is merely first step towards putting the case in a shape for determination
The latter determines finally so far as the court which makes the order is concerned that the suit as brought
will not lie
The decision therefore is a judgment in the proper sense of the term 
 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 151 1166 as a judgment  for in that case there would be any number of judgments in the course of a suit or proceeding each one of which could be challenged by way of appeal
The judgment must be the final pronounce ment which puts an end to the proceeding 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
This view which is implied in the observations of Sir Richard Couch CJ quoted above has been really made the basis of the definition of I judgment  by Sir Arnold White CJ in the Full Bench decision of the Madras High Court to which reference has been made 1
According to White CJ to find out whether an order is a I judgment  or not we have to look to its effect upon the particular suit or proceeding in which it is made
If its effect is to terminate the suit or proceeding the decision would be a judgment  but not otherwise
As this definition covers not only decisions in suits or actions but orders  in other proceedings as well which start with applications it may be said that any final order passed on an application in the course of a suit eg granting or refusing a party s prayer for adjournment of a suit or for examination of a witness would also come within the definition
This seems to be the reason why the learned Chief Justice qualifies the general proposition laid down above by stating that an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not a judgment within the meaning of the Letters Patent
 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 I 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
1 Vide Tuljaram vs Alagappa  1167 The question that requires determination in an application under clause 13 of the Letters Patent is whether a particular suit should be removed from any court which is subject to the superintendence of the High Court and tried and determined by the latter as a court of extraordinary original jurisdiction
It is true that unless the parties to the suit are agreed on this point there must arise a controversy between them which has to be determined by the court
In the present case a single Judge of the High Court has decided this question in favour of the plaintiff in the suit but a decision on any and every point in dispute between the parties to a suit is not necessarily a  judgment 
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 as has been referred to by Couch CJ in his observations quoted above
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 led 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 at 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
Mr Chatterjee in the course of his arguments placed considerable reliance upon the pronouncement of the Calcutta High Court in Hadjee Ismail vs Hadjee Mahomed 1 where it was held by Court CJ and 1 1168 Pontifex J that an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a judgment  under clause 15 and could be challenged by way of appeal
This decision was followed by the Bombay High Court in Vaghoji vs Camaji1 and it is argued by Mr Chatterjee that there is no difference in principle between an order of that description and an order transferring a suit under clause 13 of the Letters Patent
The contention of Mr Chatterjee undoubtedly receives support from the judgment of the Madras High Court in Krishna Reddy vs Thanikachala2where precisely the same line of reasoning was adopted
In our opinion this reasoning is not sound and there is an essential difference between an order rescinding or refusing to rescind leave to sue granted under clause 12 of the Letters Patent and one removing a suit from a subordinate court to the High Court under clause 13 of the Letters Patent and this distinction would be apparent from the observations of Sir Arnold White CJ in the Madras Full Bench case3 mentioned above to which sufficient attention does not appear to have been paid by the learned Judges of the same court who decided the later case
Referring to the decision of the Bombay High Court in Vaghoji vs Camaji1 White CJ observed as follows As regards the Bombay authorities I may refer to Vaghoji vs Camaji1 where it was held that an appeal lay from an order dismissing a Judge s summons to show cause why leave granted under clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file
Here the adjudication asked for if made would have disposed of the suit
So also would an order made under an application to revoke a submission to arbitration
I think such an order is appealable Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis
If such leave is rescinded
the 1 ILR 2 ILR 47 Mad
3 Vide Tuljaram vs Alagappa 1169 suit automatically comes to an end and there is no doubt that such an order would be a judgment
If on the other hand an order is made dismissing the Judge s summons to show cause why the leave should not be rescinded the result is as Sir Lawrence Jenkins pointed out1 that a decision on a vital point adverse to the defendant which goes to the very root of the suit becomes final and decisive against him so far as the court making the order is concerned
This brings the order within the category of a judgment  as laid down in the Calcutta cases
We need not express any final opinion as to the propriety or otherwise of this view
It is enough for our purpose to state that there is a difference between ail order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another and there is no good reason to hold that the principle applicable to one applies to the other also
The result therefore is that in our opinion the view taken by the High Court is right and this appeal should fail and is dismissed with costs
Appeal dismissed
Agent for the respondent No 1  Sukumnar Ghose for P C Dutt


Summary:
An order for transfer of a suit made under clause 13 of the Letters Patent of the Calcutta High Court is not a judgment within the meaning of clause 15 of the Letters Patent and no appeal lies therefrom under the Letters Patent as it neither affects the merits of the controversy between the parties in the suit itself nor terminates or disposes of the suit on any ground
Meaning of the word judgment discussed
Khatizan vs Sonairam ILR  Justices of the Peace for Calcutta vs Oriental Gas Co  Dayabhai vs Murugappa Chettiar ILR 13 Rang
457 Tuljaram vs Alagappa ILR  Mathura Sundari vs Haranchandra ILR  Chandicharan vs Tnanendra 29 CLJ 225 Lea Badin vs Upendra Mohan Boy Chowdhry  Kanwar Lal Singh vs Uma Devi AIR 1945 Nag 156 Sankar Deo vs Kalyani AIR  Shahzadi Begum vs Alaknath ILR 57 All 983 Shaw Hari vs Sonahal Beli Ram ILR 23 1160 Lab 491 Sonebai vs Ahmedbhai and Vaghoji vs Gamaji ILR referred to
Krishna Reddi vs Thanikachala ILR 47 Mad 136 disapproved