Decided on October 18,1982



P.A.Choudary J. - (1.) THIS appeal under Clause 15 of the Letters Patent has been filed against a mere notice issued on 12-10-12 by our learned brother Laksh- minarayana Reddy J., in C.M.P. No. 12880/82 in A.S.No. 2269/82. The present appellants are the petitioners in the said Civil Miscellaneous Application. They were sued by the respondent herein in O.S. No. 65/76 on the file of the Subordinate Judge, Kovvur for recovery of her steam launch by name "Swarajya Lakshmi", and for arrears of rent or profits for the period of April to end of June 1976 at a rate of Rs. 600/- per month and for future profits. The plaintiff's case was that she was the owner of the steam launch which she gave to the first appellant-defendant on lease for one year commencing from 1-1-74 and ending with 31-7-75 on a monthly rent of Rs. 350/- and that the first appellant-defendant had failed to return and deliver the launch to her after the expiry of lease, and thus rendered himself liable for damages. The second expellant was the second defendant, who stood surety to the first defendant in the suit. The suit was opposed by the first appellant-defendant and the second appellant-defendant, his surety. The trial court over-ruled the defence and decreed the suit on 26-8-82 and directed immediate delivery of the launch to the plaintiff and also directed the first defendant to pay profits from the date of suit on 15-7-76 till the day the launch was delivered to the plaintiff at the rate of Rs. 350/- per month. The present-appellants feeling aggrieved by the above decree had filed the above A.S. No. 2269/82 in this court and moved the above miscellaneous application for stay of all further proceedings that might be taken by the plaintiff pursuant to the decree in the above mentioned O. S. 65/76 on the file of the Subordinate Judge, Kovvur. According to the procedure of this court a regular first appeal is automatically admitted in the Registry and. it is the miscellaneous application that comes for initial judicial scrutiny. Our learned brother Lakshminarayana Reddy J., before whom the above C.M.P. came for orders, ordered notice to the plaintiff returnable in one week on 13-10-82. The defendants-appellants feeling aggrieved by that filed this seppeal against that ordering of notice by our learned brother Lakshminarayana Reddy J., The registry has taken objection to the maintainability of the appeal.
(2.) WE have heard Sri Suryanarayanamurthy for the appellants at full length and we are fully satisfied that this particular appeal is wholly incompetent and cannot be maintained under Clause 15 of the Letters Patent. It should be emphasised that the institution of an appeal is a statutory creation and is unknown to that grand old dame, Common Law. This appeal is filed under Cl. 15 of the Letters Patent. The question whether an appeal, under Clause 15 of the Letters patent, is competent against a mere crdering of notice by a learned single Judge should therefore be answered only on the basis of the meaning the word 'judgment' bears in Clause 15 of the Letters Patent. Clause 15 of the Letters Patent provides for a right of appeal only against a 'judgment' passed by a learned single Judge. If ordering notice itself amounts to passing of a judgment within that meaning then appeal would be competent. The question therefore is whether in ordering notice on the appellants application for grant of stay, Lakshminarayana Reddy J., has passed a judgment. It must be admitted that the meaning of the word 'judgment' as sometimes been variedly taken in our High Court itself by some learned Judges acting on the assumption that even ordering notice without finally adjudicating upon the merits of the C.M;P. would amount to passing of a judgment. But its ordinary meaning is the one which Halsbury's Laws of England gives us as any decision given by a court on a question at issue between the parties, According to this meaning the word 'judgment', where there is no adjudication on merits, there can be no judgment. It appears to us that this view is preferable to the other which assumes that there can be a judgment even where there is no adjudication on the issue between the parties. In other words, the word 'judgment' means adjudication of the issues between the parties, may be even ex parte. By ordering a mere notice the Court does not trench upon the merits and makes no adjudication on issues between the parties. It merely postpones the adjudication to a future date. Let us admit that such a postponement causes some inconvenience or even detriment to the "party. But that inconvenience or detriment is not the result of an adjudication by the court on any issue between the parties. It is merely the result of postponing the hearing to a future date. That is not one of the issues between the parties and that is no adjudication at all. The court does not lose its jurisdiction over the matter by ordering notice nor would it become functus officio by passing such an order. Strictly speaking the notice ordered would not in any way affect the rights of the applicant as such an order would have the effect of only postponing the hearing to a later date after service of notice on the party sought to be affected. It is really an act of refusal to adjudicate immediately. Although that might cause prejudice, that is no adjudication and no passing of a judgment. The ordering of notice cannot by any reasonable standards be regarded as amounting to passing of a judgment on any issue between the parties. If such an order is not a judgment, clearly no appeal lies. The recent judgment of the Supreme Court in Shah Babulal Khimji vs. Jayaben approving the observations of Sir Arnold White C. J., in Tuljaram Row's case (19121.L.J. 35 Madras 1) clearly goes against the argument of the appellants. Arnold White C. J., in his judgment assumed that judgment is the function of an adjudication of the rights. He even said that such an adjudication must put an end to the entire suit or proceedings so far as the Court before which the suit or proceeding is pending is concerned. Clearly ordering notice does not involve any adjudication of the rights of the parties, nor deos it put an end to the proceedings in the sense in which the learhed Chief Justice has used that word. Ordering of notice is nothing mere than taking a step towards the final adjudication in those proceedings. Even where it might cause prejudice, it cannot be described as judgment. It is a step in aid and such a step in aid is not a judgment within the meaning of Letters Patent. In view of the above, we are unable to entertain this appeal. S. But Sri Suryanarayanamurthy argued that it is the substance of an order that must be looked into and not the form and that even ordering of notice can at times amount to a rejection of the petitioner's prayer for relief. It may be. But what clause 15 of Letters Patent makes appealable is only positive adjudication but not refusal to grant immediate aid. Even strictly, Sri Suryanaryana Murthy's argument is slightly guilty of exaggeration. So long as it is permissible for the court to adjudicate upon the C. M. P. on which a notice has been ordered, it would be theore tically impossible to contend that ordering of notice in such affects anyone's fights. There is scope for retrieving of the situation and there is scope for restituting. That would exclude the possibility of any advene effects being produced. In our view, this substance theory of adverse effects has therefore no substance. In any ease, in view of the fact that clause 15 of Letters Patent permits appeals only against judgments and as ordering of notice does not trench upon merits or constitute adjudication, no Letters Patent appeal is competent against those orders. 4. The other argument of the leaned counsel Sri Suryanarayaaa Murthy is that just as some courts treated refusal to grant an exparte injunction and mere ordering of notice as amounting to refusal to grant an exparte injunction under Order 39 Rule I C. P. C. making such ordering of notice appealable under Order 43 C. P. C, we should also treat the ordering of notice should also be appealable. No case has been placed before us to show that any court has treated the ordering notice at amounting to refusal to grant exparte injunction. In fact, the provision of C. P. C. make the granting of an exparte injunction an exception by calling for recording of special reasons for such an order. WE are, therefore, unable to accept that submission. But in any case for the purpose of Clause 15 of the Letters Patent, it should be held that unless a matter is adjudicated upon on issues between the parties, no judgment can ensue. No order made by court merely issuing notice and postponing the adjudication to a future date can be regarded as a judgment. The fact that retrieval and restitution are possible in all such cases, shows that no real harm or detriment can ensue to the parties. 5. WE accordingly dismiss this appeal as not maintainable and direct the office to immediately serve the notice on the respondent so that the C. M. P. may be listed within one week from to-day. LPA dismissed as not maintainabe.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.