BAKSHI HARDATT Vs. STATE OF J&K

JUDGEMENT

(1.) RESPONDENT No. 1 has brought a suit for recovery of Rs. 35,120.11 against the appellant and respondent Nos. 2 and 3, which is pending in the High Court on its original side from April 5, 1968. An application was moved on January 1971 by the appellant before the learned Single Judge, trying the suit that the transactions having taken place between Kathua Motor Union -a partnership firm and Respondent No. l, the firm was a necessary party to the suit and might therefore be impleaded as a defendant in the suit. The learned Single Judge, J. N. Bhat J. as His Lordship then was, dismissed the aforesaid application vide his order dated Sept. 7,1971. This appeal is directed against the said order. A preliminary objection has been taken by respondent No. 1 that the impugned order being either appealable under the provisions of Order 43 of the Code of Civil Procedure nor the same being a judgment within the meaning of Cl. 12 of the Letters Patent, the appeal was not maintainable.

(2.) NO absolute principle of law can be laid down that every order refusing the prayer to amend the suit by adding a party to it or on some other account would be or would not be a judgment within the meaning of Cl. 12 of the letters Patent. Each case has to be decided on its own its own peculair facts. Such an order would be judgment only when it affect the merits of the controversy between the parties by deciding some right or liability and the decision is final so far as the court passing the order is concerned irrespective of the fact whether the amendment is allowed or refused. Needless to refer to the catenae of authorities on the point are cent judgment passed by the Supreme Court in Shant Kumar R Canji Vs The Home Insurance Co. of New York, AIR 1974 SC, 1719 may be noticed wherein their Lordships held as under: - "....... .If an amendment merely allows the pltff. to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the pltff. to raise further contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of Clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial court is concerned. In finding out whether the order is a judgment within the meaning of clause 15 of 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 or liability."

(3.) A similar view has been taken by this court recently in Letters Patent Appeal No. 9 of 1973 Re: M/S Timber Private Ltd., Vs. Shri Baldev Raj and others, decided on March 28, 1977.