ASHIM KUMAR BANERJEE, Arijit Banerjee, JJ. - (1.) THE Code of Civil Procedure would clearly categorize the decisions of one Court to be available for appeal before the superior Court. A class of decisions is specified as order that would be covered by Order XLIII whereas the other class to be treated as decree would be dealt with by Order XLI. There are orders where appeal would not be maintainable and revision would lie, yet many a times there are confusions looking at the nature of the decision. The Court of law does not dismiss those erroneous appeals as a matter of course and often permit the appellants to convert it into the right form. This procedure is not unknown.
(2.) THIS is an intra Court appeal within the meaning of clause 15 of the Letters Patent. The decision was rendered under Order VII Rule 10 and 11 wherein the learned Single Judge dismissed the suit filed by the appellant. Appellant filed the appeal treating it as an appeal from order that should have been an appeal from decree. The respondent would contend, they cautioned the appellant at the admission stage. Yet the appellant was callous. The appeal appeared for hearing before us when the appellant realized their mistake and sought an adjournment to make the present application for amendment that was in effect, correction of such mistake. The appellant prayed for amendment of the cause title and the body of the Memorandum of Appeal limited to the mistake referred to above. The respondents contested the application by filing affidavits. Mr. Jishnu Chowdhury learned Counsel appearing for the appellant contended, he did not have any specific instruction as to whether the respondent cautioned the appellant at the admission stage. He frankly confessed, the counsel appearing for the appellants realized their mistake when appeal was listed for hearing. Immediately they moved the application for amendment. According to Mr. Chowdhury, the amendment was innocuous and formal in nature that would not change the nature and character, in any event, the amendment, if allowed, would not cause any prejudice to the respondent. Per contra, Mr. K. R. Thakkar, learned Counsel being led by Mr. S.N. Mookherjee learned Senior Advocate would contend, the appeal was defective and was liable to be dismissed. The proposed amendment, if granted, would change the nature and character. In any event, the laws of limitation would hit such amendment. Mr. Thakker would rely upon the following decisions to support his contentions: 1. Rampravesh Singh and others Vs. Mahesh Singh and others reported in All India Reporter 1961 Patna Page - 129. 2. Shiv Gopal Sah @ Shiv Gopal Sahu Vs. Sita Ram Saraugi and others reported in All India Reporter 2007 Supreme Court Page -1478. 3. Salil Dutta Vs. T.N. and M.C. Private Limited reported in 1993 Volume -II Supreme Court Cases Page -185. 4. Chetan Lal Purshottam Singh Daoo Vs. Dau G.S. Gupta and others reported in All India Reporter 1938 Nagpur Page -233. 5. Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava and others reported in All India Reporter 1961 Supreme Court Page - 832. 6. Ram Narain Joshi Vs. Parmeswar Narain Mahta and Others reported in Indian Law Reporter 1903 Calcutta Page - 309
(3.) WE have considered the rival contentions. We have carefully perused the proposed amendment. We fully agree with Mr. Chowdhury, the amendment was absolutely formal in nature. It is true that once the appeal from order would be converted into appeal from decree, it would have a different shape. The same would attract appropriate court fees to be paid. However, the respondent would not be in any way prejudiced. In the decision in the case of Salil Dutta (Supra), the High Court dismissed the application under Order IX Rule 13 of the Code of Civil Procedure after considering the conduct of the defendant. The Apex Court, considering the effects involved therein, upset the judgment of the Division Bench and recalled the order of dismissal. In the case of Chetan Lal Purshottam (Supra), the names of three defendants were included in the heading of the decree but in substance, the Court passed no order either for or against them. The appeal relating to those parties would be barred by limitation. In the case of Rampravesh Singh (Supra), appellant filed application for condonation of delay. The Apex Court observed, the Memorandum must be accompanied by a copy of the decree appealed from. The Court can not dispense with as the rule was imperative. Subsequent inclusion beyond the period would be barred. In the case of Jagat Dhish Bhargava (supra), Trial Court failed to draw up the decree. Considering such fact, the High Court observed, it would be unfair to penalize any party for mistake committed by the Court. The Apex Court declined to interfere. In the case of Ram Narain Joshi (Supra), mistake was brought to the notice of the appellant, yet they did not take any contemporaneous step. House of Lords dismissed the appeal. In the case of Shiv Gopal Sah @ Shiv Gopal Sahu (Supra), the Court found, amendment, if allowed, would be beyond time as the claim sought to be brought by amendment, was already barred. Considering such situation, the Apex Court dismissed the amendment application. ;