1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.1068 OF 2005 IN CHAMBER SUMMONS NO.1692 OF 2004 IN SUIT NO.3757 OF 1998 Mr.Madhukar Venkatesh Ullal of Mumbai Indian Inhabitant, residing at Flat No.7, Saravana Co-operative Housing Society Ltd., Phiroshah Mehta Road, Vile Parle, (East), Mumbai- 400 057. .. Appellant (Orig. Plaintiff) v/s. 1. M/s.Anita Hermy D'Souza of Mumbai Indian Inhabitant, residing at A/15, 4th floor, Park View, Kulup Wadi Lane, Near National Park Gate, Borivali (East), Mumbai-400066. 2. Mr.Allan Hermy D'souza of Mumbai, Indian Inhabitant, residing at A/15, 4th floor, Park View, Kulup Wadi Lane, Near National Park Gate, Borivali (East), Mumbai-400066. 3. Mr.Evrad Hermy D'Souza of Mumbai, Indian Inhabitant, residing at House No.100, St. Braz Road, Vile Parle (West), Mumbai 400 056. 4. Ms.Mishal Hermy D'Souza, of Mumbai, Indian Inhabitant, residing at A/15, 4th floor, Park View, Kulup Wadi Lane, 2 Near National Park Gate, Borivali (East), Mumbai-400066. 5. Mr.Jerome John D'Souza of Mumbai, Indian Inhabitant, residing at House No.100, St. Braz Road, Vile Parle (West), Mumbai 400 056. 6.(a) Mr.Alan Michael Aloysious Pereira of Mumbai, Indian Inhabitant, residing at Flat No.253/D-4, Sweet Home Co-operative Housing Ltd. Gorai-II, Borivali (West), Mumbai- 4000 092. 6(b) Ms.Alice Maria Michael Aloysious Pereira of Mumbai, Indian Inhabitant, residing at Flat No.253/D-4, Sweet Home Co-operative Housing Ltd. Gorai-II, Borivali (West), Mumbai- 4000 092. 7. Ms.Irene John D'Souza of Mumbai, Indian Inhabitant, residing at House No.100, St. Braz Road, Vile Parle (West), Mumbai 400 056. 8. Mrs.Beatrice E. Misquitta, of Mumbai, Indian Inhabitant, residing at House No.20, Bajaj Road, Behind Shreenath Apartment, Vile Parle (West), Mumbai-400 056. 9. M/s.Zodiac Developer Pvt.Ltd. A company registered under Companies Act, 1956 and having their office at 0-10, Bharat Industrial Estate, T.J.Road, Sewree, Mumbai-400 015. 10.Phul Kumar Kailash Thakur, of Mumbai, Indian Inhabitant, 3 residing at Vittal Kutir, Shradhanand Road, Vile Parle (East), Mumbai-400 057. 11. Ram Singh Kailash Thakur of Mumbai, Indian Inhabitant, residing at Vittal Kutir, Shradhanand Road, Vile Parle (East), Mumbai- 400 057. 12. Chhotalal D. Kotia, of Mumbai, Indian Inhabitant, residing at Flat No.1, Shanti Vijay Apartment, Ground Floor, Azad Road, Vile Parle (East), Mumbai- 400 057. 13. Mr.Chaganlal D. Kotia, of Mumbai, Indian Inhabitant, residing at Room No.9, Vasant Niwas, Ground floor, Nehru Road, Vile Parle (East), Mumbai-400 057. 14. Municipal Corporation for Greater Mumbai, having their office at Mahapalika Bhavan, Mahapalika Marg, Mumbai-400 001. 15. Mrs.Asma Begum Shekh, of Mumbai, Indian Inhabitant, carrying on business in the name and style of M/s.S.G.Enterprises, having her office at 508, Navrattan, 69, P.D.Mello Road, Carnac Bunder, Mumbai-400 009 and also at house No.100, St.Braz Road, Vile Parle (West), Mumbai- 400 056. 16. Mr.Jignesh Kirti Shah, of Mumbai, Indian Inhabitant, carrying on business in the nameand style of M/s.S.G.Enterprises,having his office at 508, Navrattan,69, P.D.Mello Road, Carnac Bunder, Mumbai-400009. 17. Mr.Manilal Lalji Gala, of 4 Mumbai, Indian Inhabitant, carrying on business in the name and style of M/s.S.G.Enterprises, having his office at 508, Navrattan, 69, P.D. Mello Road, Carnac Bunder, Mumbai- 400 009. 18. Smt.Aparna Bimal Gala of Mumbai, Indian Inhabitant, carrying on business in the name and style of M/s.S.G.Enterprises, having her office at 508, Navrattan, 69, P.D. Mello Road, Carnac Bunder, Mumbai- 400 009. 19. M/s.Marvellous Builders Pvt.Ltd. A company duly incorporated under the Provisions of the Companies Act, 1956 and having its registered address at 162, Mittal Tower, 16th Floor, `A' Wing, Nariman Point, Mumbai- 400 021. 20. Mr.Sayed Mustafa Hussaini, .. Respodents Adult, Indian Inhabitant, having (Orig.Defendants his address at 7/92, Kardi Park, Respondent Nos.1 Irla, Vile Parle (W), to 15, org.Deft.Nos. Mumbai- 400 056 1 to 15, Respondent Nos.16 to 18 are newly added Defts., Respondent Nos.19 is the original Respondent, Respondent No.20 if the original applicant.) Mr.Pankaj Kavli i/by Ms.U.M.Jhaveri for the appellant. Mr.Tejas Vora i/by Mr.Bharat Joshi for the respondent No.20. Mr.K.N.Gaikwad for the respondent No.14. 5 CORAM : R.M.LODHA AND ANOOP V. MOHTA, JJ. DATED : 23RD JANUARY, 2006 ORAL JUDGMENT (Per R.M.Lodha, J.) By the order dated 13th April, 2005, the learned Chamber Judge granted the chamber summons taken out by Sayed Mustafa Hussaini for his impleadment in the suit for the declaration and other incidental reliefs. Aggrieved thereby, the plaintiff has come up in appeal under clause 15 of the Letters Patent. 2. The respondent No.2- newly added defendant has raised the objection about the maintainability of the appeal. 3. The question that falls for our determination is: is the appeal maintainable under Clause 15 of the Letters Patent. 4. Clause 15 of the Letters Patent reads thus- “15. Appeal to the High Court from Judges of the Court:- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction by a Court subject to the superintendence 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 the exercise of the power of superintendence under the provisionis of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of, the said High Court or one Judge of any Divisional Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a Judgement of one Judge of the said High Court from a Judge of any Division Court, pursuant to section 108 of the Government of India Act, made on or after the first day of 6 February one thousand nine hundred and twenty-nne 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 superintendence of the said High Court, where the Judge who passed the judgement declares that the case is fit one for appeal; but that the right of appeal from other judgements of Judge of the High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided.” 5. The concept and purport of the word “judgment” used in clause 15 of the Letters Patent and also its scope and meaning has come up for consideration before the courts from time to time. We need not go into all these judgments as the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786, thoroughly scanned and analysed large number of precedents starting from Sonbai v. Ahmedbhai Habibhai, (1872) 9 Bom HCR 298, the Full Bench decision of this court upto the case of Shanti Kumar R. Canji v. Home Insurance Co. of New York, AIR 1974 SC 1719 and laid down the tests to determine as to when an order passed by the trial Judge of the High Court can be said to be a judgment within the meaning of clause 15 of the Letters Patent. In the exercise, the Supreme Court, besides its previous judgments, considered judgments of this court, Calcutta High Court, Madras High Court, Allahabad High Court, Lahore High Court, Rangoon High Court, Nagpur High Court, Andhra Pradesh High Court, Jammu & Kashmir High Court and the Privy Council. 6. The Supreme Court in Shah Babulal Khimji noticed that the 7 interpretation of the word “judgment” appearing in the Letters Patent has not been consistent or unanimous and there was serious divergence of judicial opinions and a constant conflict between the High Courts for more than a century. What amazes us is that even after the decision in Shah Babulal Khimji, the question continues to be raised about the maintainability of appeals from various orders passed by the trial Judge of the High Court. In the present case, the maintainability of the appeal is questioned in the appeal from an order relating to addition of party under Order 1 Rule 10 CPC. 7. The tests laid down in the leading case from Madras High Court in T.N.Tulijaram Row v. M.K.R.V.Alagappa Chettiar, (1912) ILR 35 Madras 1 were generally approved in Shah Babulal Khimji. In paragraph 90 of the report, the Supreme Court considered the tests spelt out by Sir Arnold White, C.J. In Tuljaram Row's case thus- “90. The next leading case which lays down the test of a `judgment' and which seems to have found favour with most of the High Courts in India is the test laid down by Sir Arnold White, C.J. In Tuljaram Row's case (1912 ILR 35 Mad 1) (supra) where the learned Chief Justice pointedly spelt out various tests and observed thus- “The test seems to me to be not what is the form of the adjudication but what is its effect in 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. An adjudication on an application which is nothing more than a step towards 8 obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent. I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained)- e.g., an order on an application for an interim injunction, or for the appointment of a receiver is a `judgment' within the meaning of the clause.”” 8. In paragraph 91, the tests laid down by Sir Arnold white, C.J. were catalogued thus- “91. ......................... (1) It is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding; (2) If, irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment; (3) Similarly, the effect of the order, if not complied with, is to terminate the proceedings, the said order would amount to a judgment; (4) Any order in an independent proceeding which is ancillary to the suit (not being a step towards judgment) but is designed to render the judgment effective can also be termed as judgment within the meaning of the Letters Patent; So far as this test is concerned, the learned Chief Justice had in mind orders passed by the Trial Judge granting or refusing ad interim injunction or appointing or refusing to appoint a receiver. (5) An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings. 9 (6) An adjudication based on a refusal to exercise discretion the effect of which is to dispose of the suit, so far as that particular adjudication is concerned, would certainly amount to a judgment within the meaning of the Letters Patent.” 9. The Supreme Court in paragraph 92 referred to the test applied by Krishnaswami Ayyar, J. in Tuljaram Row's case but disagreed with him thus- “92. Similarly, Krishnaswami Ayyar, J., who agreed with the Chief Justice in the above case, pointed out that even an interlocutory judgment which determines some preliminary or subordinate point or plea or settles some step without adjudicating the ultimate right of the parties may amount to a judgment. With due respect we think that if the observations of Krishnaswamy Ayyar, J. are carried to its logical limit every interlocutory order would have to be held to be appealable.” 10. Then in paragraph 93 of the report, the Supreme Court observed thus- “93. So far as the tests laid down by White, C.J., and as analysed by us, are concerned we are inclined to agree generally with these tests though we feel that some of the tests laid down are far too wide and may not be quite correct. While the view taken by Sir Rechand Couch, C.J. In Justice of the Peace for Calcutta (1872-8 Beng LR 433) (supra) is much too strict, the one taken by Sir White, C.J. Is much too wide. The correct test seems to lie somewhere in between the tests laid down by the aforesaid jurists.” 11. In paragraph 107, the Supreme Court considered its earlier decision in the case of Shanti Kumar R. Canji v. Home insurance Co. of New York, AIR 1974 SC 1719 and noticed the said judgment in the following manner:- 10 “107. The last case of this Court to which our attention has been drawn is Shanti Kumar R. Canji v. Home Insurance Co. of New York, (1975) 1 SCR 550: (AIR 1974 SC 1719) where the court was considering the effect of an order passed by the trial Judge allowing amendment of the plaint and the question at issue was whether such an order would be a judgment within the meaning of the Letters Patent. The following observations were made by this Court in the aforesaid case (at p. 1722 of AIR): “We are in agreement with the view expressed by the High Court at Calcutta in the M.B.Sirkar's case (AIR 1956 Cal 630) as to when an order on an application for amendment can become a judgment within the meaning of clause 15 of the Letters Patent. If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial Court is concerned. In finding out 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. The right or liability is to be found out by the court. 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.” (Emphasis ours). Thus, having noticed the ratio of some of the cases of this Court referred to above, regarding the tests to determine the import and meaning of the word `judgment' we now proceed to deal with the specific question after interpreting clause 15 of Letters Patent of the Bombay High Court and the corresponding clauses of Letters 11 Patents of other High Courts. We shall endeavour to interpret the connotation and the import of the word `judgment' particularly in the light of pertinent and pointed observations made by this Court on earlier occasions as discussed above.” 12. The Supreme Court in paragraph 113 of the report held that the word `judgment' should receive 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 the 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. The Supreme Court while holding that the word `judgment' has a concept of finality in a broader and not a narrower sense, categorised the judgment in three types; (i) final judgment; (ii) preliminary judgment and (iii) intermediary or interlocutory judgment in the following manner: “(1) A final judgment- A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves, nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench. (2) A preliminary judgment- This kind of a judgment may take two forms- (a) where the trial Judge by an order dismisses the suit without going into the merits of the suit 12 but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench. ((b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdictiion, res judicata, a manifest defect in the suit, absence of notice under Sec.80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objectiions doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench. (3) Intermediary or interlocutory judgment- Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43, Rule 1 and have already been held by us to be judgments within the meaning of the Letters Patent and, therefore, appealable. 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.” 13. Apart from the tests laid down by Sir Arnold White, C.J., in Tuljaram Row's case and the said tests having been generally adopted and approved by the Supreme Court, in paragraph 119 of the report, the Supreme Court 13 observed that the following considerations must prevail with the court. “(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. (2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings. (3) The tests laid down by Sir White, C.J. Is also by Sir Couch, C.J. As modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.” 14. In paragraph 120 of the report, the Apex Court gave illustration of interlocutory orders which may be treated as judgments. These interlocutory orders are: “120. ............................... (1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant. (2) An order rejecting the plaint. 14 (3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure. (4) An order rescinding leave of the trial Judge granted by him under Cl.12 of the Letters Patent. (5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive. (6) An order rejecting an application for a judgment on admission under O.12 Rule 6. (7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure. (8) An order varying or amending a decree. (9) An order refusing leave to sue in forma pauperis. (10) An order granting review. (11) An order allowing withdrawal of the suit with liberty to file a fresh one. (12) An order holding that the defendants are not agriculturists within the meaning of the special law. (13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Procedure. (14) An order granting or refusing to stay execution of the decree. (15) An order deciding payment of court-fees against the plaintiff. 15. As has been observed by the Supreme Court itself, the interlocutory orders referred to in paragraph 120 are only illustrative and not exhaustive but give sufficient guidelines as 15 to which order passed by the trial court amounts to judgment within the meaning of Letters Patent. 16. An order allowing an impleadment of a party under Order 1 Rule 10(2) CPC in the suit does not find place in the illustrations given by the Supreme Court in paragraph 120 of the Judgment in Shah Babulal Khimji. 17. We may notice here that the Division Bench of Madras High Court in the case of R.N.Selvam Mudaliar v. P.A.Raju Mudaliar, AIR 1953 Madras 816 held that an order adding a party to a suit instituted on the Original Side of the High Court is not a `judgment' within the meaning of clause 15 of Letters Patent and no appeal lies against such order. While holding so the Division Bench relied upon the tests laid down in Tuljaram Row and it was held thus: “2. At the outset, we must hold that the appeal is not maintainable. The order of the learned Judge cannot, in our opinion, be held to be a judgment within the meaning of Cl.15, Letters Patent. In- `Ramaswami