Case: Asrumati Debi Vs. Kumar Rupendra Deb Raikot And Others

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 Bengal, - being Title Suit No. 40 of 1947, - for 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 death of his father under a custom of the family which excludes all females from inheritance and follows the rule of lineal 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 the 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 plaintiffs 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 the30th 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 considerable influence in the district, the plaintiff might have a legitimate apprehension that he would not get fair trial in the districtthis 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 against 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.

Reasoning: 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 C.J. 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 originallywas 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, a judgment is not what is defined in section 2(9) of Civil Procedure Code as being the statement given by the judge of the grounds of a decree or order, but is a judgment 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 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 Highview 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 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 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 of clause 15 of the Lettersis 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 oris 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 C.J. 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 originallyneed 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 difference between an 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 principle applicable to one applies to the other also.