1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR LPA NO.554/2009 IN WP NO.5052/2009 (D) [Bakaram Deorao Ramteke .vrs. Chintaman Dayaram Shende] ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. N.R. Saboo, Advocate for appellant. .......... CORAM : S.A. BOBDE AND P.D. KODE, JJ. DATE : APRIL 20, 2010. Heard. This is an appeal preferred against the judgment of the learned Single Judge upholding the order of the trial Court refusing permission to the appellant to amend the written statement. The appellant has stated in his written statement that he had signed on Rs.10/- stamp paper and he had put thumb impression on Rs.10/- stamp paper. Thereafter, the appellant sought to amend the written statement by pleading that the stamp paper 2 was of Rs.100/-. This application was rejected by the trial Court on the ground that it will change the nature of the defence. The appellant, therefore, preferred a Writ Petition before the learned Single Judge. That Writ Petition has been dismissed by the learned Single Judge holding that having regard to the circumstances of the case this was not typographical error. We do not propose to go into the merits of the application for amendment and make any comment on it i.e. whether it will change the nature of the case and whether typographical error or not since the question of tenability of this appeal arises in the circumstances of the case. Mr. Saboo, learned counsel for the appellant, submitted that the order refusing amendment is a judgment within the meaning of Clause 15 of the Letters Patent Appeal, since it has determined the right of the appellant. The question is : which right ?. According to the learned counsel for the appellant the learned trial Court was not right in observing that it would change the nature of the defence since there is no change in the nature of the defence. The original defence is that the transaction was a money lending transaction and that defence continues to remain the same. We find that even if 3 there is an error on the aspect whether it changes the nature of defence or not, the answer from the learned counsel for the appellant, still does not disclose which right has been determined. We find, from the circumstances of the case, that no right of the defendant has been determined. Whether on the basis of a stamp paper of Rs.10/- or Rs.100/- the issues whether the transaction is a loan transaction or an agreement to sell remain undecided. Accordingly whether the respondent has a right to a decree for specific performance of the contract remain undecided and whether the amendment is allowed or not. Mr. Saboo, learned counsel for the appellant, relied on the judgment of this Court in LPA No.78/2010 rendered on 5.4.2010. We, however, find that the circumstances of the case and the amendment sought in the written statement was different from that case in the case before us. In fact, in the case of Shah Babulal Khimji .vrs. Jayaben D. Kania and another, reported in AIR 1981 SC 1786, wherein the Supreme Court observed as follows : “In finding out whether the order is a judgment within the meaning of clause 15 of 4 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 of liability.” We find, from the nature of the order in the present case, that there is no determination of any right of liability. The LPA is dismissed as not tenable. JUDGE JUDGE Gulande