Clause 15 of the Letters Patent

Clause 15 of the Letters Patent

Discussed in BS Adityan and ors v. R.Kannan Adityan and anr.

By Madras High Court: AIR 1983 Mad 334: (1983) 2 MLJ 32:

Author Padmanabhan, J (Bench: K.Singh, Padmanabhan JJ.)

Under Cl.15 of the Letters Patent, an appeal lies to a Division Court from a judgment of one Judge of the High Court.

The question as regards the scope and ambit of the word “judgment” in Clause 15 of the Letters Patent came up for consideration before the Supreme Court in Shah Babulal Khimji v. Jayaben D.Kanai.

The question that arose for consideration before the Supreme Court was whether an appeal would lie against an order passed by a single Judge on the Original side dismissing an application for appointment of Receiver as also for an interim injunction.

Fazal Ali, J., speaking for Varadarajan, J. and himself observed as follows:-

“The intention of the givers of the Letters Patent was that the word “judgment” should receive a much wider and more liberal interpretation that the word “judgment” used in the Civil Procedure Code. At the same time, it cannot be said that any order passed by a 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. It seems that the word “judgment” has undoubtedly a concept of finality, other words, a judgment can be of three kinds: (1) A final judgment; (2) A Preliminary judgment; and (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 (of CPC) 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 Or.43 R1 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.”

The learned Judges gave various instances and also took care to point out that the instances give were illustrative and not exhaustive.

Among others, tests laid down by Sir White, C.J. in TV Tuljaram Rao v. MKRV Alagappa Chettiar, (1912) ILR 35 Mad 1, viz., 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 proceedings or in the suit itself or in a part of the proceedings, Sen J. observed thus:-

“What kind of an order will constitute a judgment within the meaning of Cl.15 depends on the facts and circumstances of each case and on the nature and character of the order passed…… In my opinion, an exhaustive or a comprehensive definition of judgment as contemplated in Cl.15 of the Letters Patent cannot be properly given and it will be wise to remember that in the Letters Patent itself, there is no definition of the word “judgment”. The expression has necessarily to be construed and interpreted in each particular case. It is, however, safe to say that it any order has the effect of finally determining any controversy forming the subject matter of the suit itself or any part thereof or the same affects the question of Court’s jurisdiction or the question of limitation, such an order will normally constitute a judgment within the meaning of Cl.15 of the Letters Patent. I must not, however, be understood to say that any other kind of order may not become judgment within the meaning of Clause 15 of the Letters Patent to be appealable under the provisions thereof.”

Applying to the tests laid down by the Supreme Court in the above decision, we are of the view that the present appeal is maintainable.

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