1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.670 OF 2005 IN CHAMBER SUMMONS NO.653 OF 2003 IN SUIT NO.3688 OF 1996 Umarani D.Poddar. ...Appellant vs. 1.Smt.Shantidevi S. Jhuria and others. ...Respondents --- Mr.K.R.Bulchandani with Ms.L.K.Bulchandani & Ms.Tulsi A.Zaveri, for Appellant. Mr.K.M.Mody, for Respondent nos.1 to 4. Respondent no.5 in person present. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 26th March,2009. 2 P.C.:- 1. This appeal is filed by the original plaintiff challenging the order passed by the learned Single Judge of this Court rejecting his chamber summons for adding party as a defendant to the suit. Preliminary objection to the maintainability of the appeal is raised on behalf of the defendants who opposed the chamber summons. According to the defendants, this Letters Patent Appeal filed under Clause 15 of the Letters Patent against the order rejecting the application for amendment in the plaint by adding a party, is not maintainable. The defendants rely on the judgment of the Supreme Court in the case of “Shah Babulal Khimaji Vs. Jayaben D.Kania and another, AIR 1981 Supreme Court 1786”. The learned Counsel appearing for defendants invited our attention to paragraph 120 of the judgment and has submitted that the Supreme Court has held that the appeal under clause 15 is maintainable, according to the judgment of the Supreme Court, 3 against the order refusing to add necessary party in a suit filed under Section 92 of the Code of Civil Procedure. According to the learned Counsel therefore, an appeal under Clause 15 of the Letters Patent against the order refusing to add necessary party in a suit which is not filed under Section 92 of CPC is not maintainable. The learned Counsel appearing for appellant, on the other hand, relying on the observations in paragraph 84, 108 and 110 submits that a letters patent appeal is maintainable against the order refusing to allow application for amendment submitted by the plaintiff for adding necessary party. 2. We have gone through the judgment of the Supreme Court. The Supreme Court has held that while considering whether an appeal filed under clause 15 of Letters Patent is maintainable against the interlocutory order passed by the Civil Court, reference to the provisions of Section 104 and Order 43 is necessary. In addition, the Court gives illustrations of cases where appeal under Clause 15 is maintainable. While giving illustrations, the 4 Supreme Court has included in paragraph 120 of the Judgment the illustration of an order made by the Trial Court refusing to add necessary parties by qualifying that such suit be filed under Section 92 of the C.P.C. In our opinion, what is said by the Supreme Court in paragraph 120 of the Judgment in the case of “Shah Babulal Khimji” case alongwith the finding of the Supreme Court that while considering the question as to the maintainability of Letters Patent Appeal, the Court has to refer to the provisions of Section 104 alongwith Order 43 of the C.P.C.. In our opinion, the order rejecting the application for amendment in plaint for adding a party in the suit which is not a suit under Section 92 of C.P.C. cannot be termed as judgment within the meaning of Clause 15. Therefore, the appeal is not maintainable. As we find that the appeal itself is not maintainable, we have not heard the learned Counsel appearing for appellant on merits of the order. Appeal is disposed of. (D.K.DESHMUKH, J.) 5 (A.A.SAYED,J.) ---