O.Chinnappa, J. - (1.) ON 10th May, 1976, our brother A. S. Bains J. passed an order purporting to be under Sections 22 and 23 of the Code of Civil Procedure transferring a suit pending in the Court of the Subordinate Judge Ist Class, Ballabhgarh, a Court subordinate to this High Court, to the Court of the Subordinate Judge, Alipore, District 24 Parganas, a Court subordinate to the High Court of Calcutta. The aggrieved party has preferred this appeal under clause X of the Letters Patent and the opposite party has raised a preliminary objection that the appeal is not maintainable as the order of A. S. Bains J. is not a "judgment" within the meaning of clause X of the Letters Patent.
(2.) FOR well high a century, learned judges have been chasing after the meaning of the word 'Judgment' occurring in the Letters Patent and their quest has contributed several volumes to judicial literature, if the Law Reports may be so described. The quest has not ended. In 1953 the Supreme Court, after noticing the conflicting views expressed by different learned Judges, observed that it might be necessary for that Court, on some appropriate occasion, to resolve the wide difference of judicial opinion and to determine with some precision the true meaning ana scope of the word 'Judgment': vide Asrumati Debi v. Kumar Rupendra Deb Raikot : AIR 1953 SC 198. But, for the purposes of the present case, we do not have to wait for the final resolution by the Supreme Court. In the very case of Asrumati Debi (supra), the Supreme Court considered the question whether an order of transfer of a suit was a 'Judgment' within the meaning of Clause 15 of the Letters Patent of the Calcutta High Court. They held that is was not they said: - The question that requires determination in an application under Clause 1.13 of the Letters Patent is, whether a particular suit should be removed from any Court which is subject to the superintendence of the High Court and tried and determined by the latter as a Court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the Court. In the present case, a single Judge of the High Court has decided this question in favour of the Plaintiff in the suit, but a decision on any and every point in dispute between the parties to a suit is not necessarily a 'Judgment'. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under Clause 13 of the Letters Patent, is, in the first place, not at all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the letter, to be taken only from the stage at which they were left in the Court in which the suit was originally filed. In our view the decision of the Supreme Court in Asrumati Debi's case concludes the question. But Shri Doabia, Learned Counsel made a brave attempt to distinguish the case on the ground that the Supreme Court was there concerned with the removal by the High Court of a suit from a subordinate court to itself under Clause 13 of the Letters Patent while we are here concerned with the transfer of a suit from one Court to another. We are unable to see any difference in principle and we further notice and that the Supreme Court also described the order of removal as an order of transfer in the extract quoted by us. Shri Doabia suggested that an order of removal under Clause 13 could well be an administrative order while an order under Sections 22(sic) to 24 C P. C could never be an administrative order. The Supreme Court held that an order of removal under Clause 13 was not a judgment not because it was an administrative order but because the order neither affected the merits of the controversy between the parties in the suit nor terminated or disposed of the suit on any ground.
(3.) SHRI Doabia relied on some observations of a Full Bench of the Lahore High Court in Shaw Hari Dial and Sons v. Sohna Mal Beli Ram, I.L.R. 23 Lah. 491. The Full Bench had observed as follows: - There remains only to notice two rulings of our own High Court - Pehlad Rai v. Shiv Ram,, I.L.R. (1927) 8 Lah. 681 is a decision by Sir Shadi Lal and Broadway JJ. In that case an order transferring a suit and an order refusing to transfer a suit were distinguished and it was held that an order refusing to transfer a suit was not a judgment within the meaning of Clause 10 of the Letters Patent. With the greatest respect to the learned Judges who decided the case, 1 am unable to follow the reason in the case. The proceeding which terminated by the refusal to transfer the suit could never have taken place in the trial Court trying the suit at all. An application to have the suit transferred could only be made to the High court and the proceeding so far as the right to have the suit transferred was concerned was entirely terminated by the order refusing the transfer. If then the reasoning of Tuliaram Row v. Alagappa Chettiar,, I. L R. (1912) Mad. 1 (F.B.) was to be applied to the case the order was a judgment within the meaning of the clause and therefore appealable. This judgment does not differ from the previous view expressed in Ruldu Singh v. Sanwal Singh, Row v. Alqappa Chettiar,, I. L. R. (1912) Mad. 1 (F B.). But with great respect it seems to consider that as the suit still continued, therefore, no right or liability had been determined in that suit and, therefore, that no appeal lay. If this decision were correct then an order refusing to stay execution would also not be a judgment for the execution proceedings would continue in the original Court as a result of the refusal. Yet the same learned Judge, namely, Sir Shadi Lal who delivered the judgment in Pahlad Rai v. Shiv Ram,, I.L.R. (1927) Lah. 631, had held that an order refusing stay of execution was a judgment within the meaning of Clause 10. I am unable to see that if the test proposed in Tuliaram Row v. Alaqappa Chettiar approved in Ruldu Singh v. Sanwal Singh is correct, how this decision can be said to have been correct. These observations are plainly opposed to what was said later by the Supreme Court in Asramati Debi's case. We are bound to follow what was said by the Supreme Court in preference to what was said by the Full Bench. 4. Shri Doabia urged that the word 'Judgment' took within its meaning decrees as well as orders and that the only orders which were excluded were those mentioned in Clause X itself, that is, the orders made in the exercise of revisional jurisdiction or in the exercise of the power of superintendence. We do not agree with this submission. Orders made in the exercise of revisional jurisdiction or in the exercise of the power of superintendence even if they affect the merits of the controversy in the suit or terminate or dispose of the suit and, therefore falling within the ambit of the word 'Judgment', are expressly excluded from the applicability or Clause X of the Letters Patent. That cannot mean that all other orders are appeasable under clause X of the Letters Patent. Orders like decrees are appealable under clause X of the Letters Patent only if they fulfils the test that they affect the merits of the controversy between the parties in the suit or they terminate or dispose of the suit on any ground;