Decided on February 13,1953

The Royal Calcutta Turf Club Appellant
V.K.T. Raman Menon And Anr. Respondents


Rajamannar, J. - (1.) THIS is an appeal under Clause 15 of the Letters Patent against an order made by Panchapakesa Ayyar J. on 11 -12 -1952 on an application by the plaintiff in C. S. No. 255 of 1952. By this order, the learned Judge directed the 2nd defendant in the suit to grant copies of certain original statements to the plaintiff on or before 22 -1 -1953 and that tilt the copies are granted the advocate for the plaintiff was free to have inspection and discovery of true copies in the two flies by applying to the learned counsel for the 2nd defendant. The 2nd defendant is the appellant.
(2.) A preliminary objection was taken on behalf of the respondent that no appeal lies, because the order of the learned Judge does not amount to a judgment within the meaning of that term in Clause 15, Letters Patent. We are of opinion that the preliminary objection is well founded. It is sufficient for us to refer to the decision in - - 'D K. Asher v. V. Gopala -ratnam', : AIR 1927 Mad 409 (A), wherein it was held that an order refusing to allow inspection of certain accounts which were disclosed in the affidavit of documents of a party to a suit on the Original Side of the High Court was not a "judgment" within the meaning of Clause 15, and therefore no appeal lay from it. In this case, the order allowed the inspection. We see no difference in principle which, would prevent the application of the rule laid down in this decision to the present case. Mr. O. T. G. Nambiar, learned counsel for the appellant relied upon the test which was laid down by White C J. in the leading case of - - 'Tuljaram Row v. Alagappa Chettiar',, 35 Mad 1 (B). The learned Chief Justice laid down the following test: "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." It is contended that if the order under appeal is not complied with there is tho danger of the defence of the appellant being struck off on an application by the plaintiff under Order 11, Rule 21, C. P. C. That rule says : "Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for - want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and an order may be made accordingly." It is obvious that the order now under appeal is not an order passed under this rule. If and when the appellant fails to comply with the order under appeal, then it is open to the plaintiff to apply under the above rule to have the defence struck out, and on that application, the Court may, or it may not, make an order striking out the defence. It is, therefore, clear that the order now under appeal, if not complied with, does not by itself put an end to the suit or to the defence of the appellant. The test laid down by the learned Chief Justice in the above case is, therefore, not fulfilled in this case.
(3.) FOLLOWING the decision of the Division Bench in : AIR 1927 Mad 409 (A) and the principle of the decision in, 35 Mad 1 (FB) (B) we hold that the appeal is not maintainable.;

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