P and I Services Private Limited Vs The Board of Trustees for the Port of Calcutta and Others

1. There will be an order in terms of prayer (a) of the petition. This appeal is directed against the order dated 6th September, 2002 passed by the learned single Judge sitting in the Admiralty Jurisdiction in G.A. No. 3537 of 2002, in connection with A.S. No. 11 of 2001, dismissing the appellant''s application for rejection of the plaint or in the alternative for deleting its name from the suit, with costs assessed at 600 Gms.

2. When the application for stay was initially moved, an objection was taken on behalf of the respondent No. 1 regarding the maintainability of the appeal, and, accordingly it was decided that the matter be taken up for consideration on such objection first. Accordingly, the matter has been listed today for the aforesaid purpose.

3. Appearing for the Board of Trustees for the Port of Calcutta, Mr. S. Roychowdhury firstly urged that having regard to the nature of the order passed by the learned single Judge, no appeal would lie either under the provisions of Order 43 Rule 1 of the CPC or under Clause 15 of the Letters Patent.

4. Mr. Roychowdhury pointed out that an order passed under Order 1 Rule 10 did not come within the scope, of Order 43 Rule 1 nor did an order under Order 7 Rule 11 come within such scope. Furthermore, Mr. Roychowdhury urged that the order as passed was not a decision whereunder the rights of the parties had been adjudicated finally so as to affect the rights of any of the parties litigating and in particular the appellant herein. Mr. Roychowdhury submitted that having regard to the statements made in paragraph 10 of the plaint, it must be held that the appellant which had been made defendant No. 5 in the suit, was a necessary party whose presence was required in the suit for proper adjudication of the disputes.

5. In support of his aforesaid submission Mr. Roychowdhury firstly relied on a Bench decision of this Court in the case of Suprokash Das Vs. The Indian Tea Licensing Committee , wherein the application of the appellant for striking out the name of the respondent, Indian Tea Licensing Committee, was disallowed and the order of the learned single Judge was upheld on the ground that the said Committee was a necessary party for a proper adjudication of the issues involved in the suit. Mr. Roychowdhury referred to the observations made in the said judgment to the effect that an order by a Judge, hearing an appeal under the Tea Control Act, refusing to strike out the Tea Licensing Committee as respondent, is not a judgment "within the meaning of Clause 15 of the Letters Patent and accordingly, no appeal lay to a Division Bench". While making the aforesaid observations the Division Bench relied mainly on an earlier judgment of this Court in Justice of the Peace for Calcutta v. Oriental Gas Co., wherein it was observed that a decision which affects the merits of the question between the parties by determining some right or liability would come within the meaning of the expression "judgment". The same could either be finally or preliminary or interlocutory in nature, the difference between them being that a final judgment determines the whole cause of suit and a preliminary or interlocutory judgment determines only a part of it leaving other matters to be determined. The learned Judges were accordingly of the view that since the learned Judge''s decision did not purport to decide the rights of the parties finally, the same would not amount to Judgment.

6. Mr. Roychowdhury also referred to a Bench decision of this Court in the case of Prahladrai Agarwalla and Others Vs. Sm. Renuka Pal and Others, , wherein it was held that an order under Order 7 Rule 11 refusing to reject the plaint and dismissing the application for rejection of the plaint is not appealable under Clause 15 of the Letters Patent as the order is not a judgment within the meaning of that clause.

7. Mr. Roychowdhury urged that strictly speaking- the application made by the appellant herein before the learned single Judge was not within the scope of Order 7 Rule 11 but was really an application for deleting and/or expunging its name from the suit. Mr. Roychowdhury submitted that, in fact, the plaint as a whole should not be rejected merely on account of the prayer made by the appellant (defendant No. 5), that neither was there any cause of action against him nor had any relief been sought against him in the suit.

8. In support of such submission Mr. Roychowdhury referred to the Bench decision of this Court in P.B. Shah and Co. and Others Vs. Chief Executive Officer and Others, , wherein in the facts of the said case it was held that the order rejecting the plaint was erroneous. On the finding that the suit was not maintainable against the defendant No. 1, the suit should have been dismissed against him but the plaint as a whole could not be rejected. What Mr. Roychowdhury sought to urge was that the prayer made by the appellant for rejection of the plaint as a whole was entirely erroneous and could not be allowed. Mr. Roychowdhury submitted that since the order of the learned single Judge did not seek to decide finally any of the issues in the suit and since the appellant would not stand to be prejudiced in any way if it was retained as a party to the suit, the order of the learned single Judge did not come within the scope of Clause 15 of the Letters Patent and accordingly, having regard to the decision in the case of the Indian Tea Licensing Committee, no appeal would lie and the instant "appeal was, therefore, liable to be dismissed.

9. Appearing for the appellant Company Mr. Sudipto Sarkar urged that the decision cited by Mr. Roychowdhury in the Indian Tea Licensing Committee case (supra) had been considered and distinguished by the Hon''ble Supreme Court in the celebrated judgment of Shah Babulal Khimji Vs. Jayaben D. Kania and Another, . In the said decision the Hon''ble Supreme Court observed that whenever a Trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the meaning of the Letters Patent.

10. While considering the matter from various aspects and the various judgments of the different High Courts oh the said point, the Hon''ble Supreme Court observed that the view taken by Chief Justice Gouch in the case of Justice of the Peace for Calcutta was much too strict. In fact it was also observed that the concept of a judgment as defined by the CPC seems to be rather narrow and the illustration engrafted by Sub-section (2) of Section 2 cannot be physically imported into the definition of the word "judgment" as used in Clause 15 of the Letters Patent because the Letters Patent has not used the term "order" or "decree" anywhere. The Hon''ble Supreme Court observed further that the intention, therefore, of the Letters Patent was that the expression "judgment" should receive a much wider and more elaborate interpretation than the expression "judgment" used in the Code of Civil Procedure. Of course, a note of caution was struck and it was observed at the same time that it could not be said that any order passed by a trial Court would amount to a judgment. According to the Hon''ble Supreme Court, the word "judgment" has a concept of finality in a broader sense and not a narrow sense and in that context the Hon''ble Supreme Court had occasion to consider three situations such as the final judgment, a preliminary judgment and intermediary or interlocutory judgment.

11. Mr. Sarkar laid stress on the second category, viz. preliminary judgment, where the trial Judge dismisses the suit without going into the merits of the suit only on a preliminary objection used by the defendant on the ground that the suit is not maintainable. Mr. Sarkar submitted that by refusing to delete the name of the appellant from the suit, the learned single Judge had burdened the appellant with the worries of the suit and expenses although from the plaint itself it would be clear that no relief had been sought for against the appellant and that at best the appellant might be a necessary witness to the dispute between the parties.

12. Mr. Sarkar then referred to a Bench decision of the Bombay High Court in M.V. "Sea Success I" Vs. Liverpool and London Steamship Protection and Indemnity Association Ltd. and Another, where following the decision in Khimji''s case (supra), the Bombay High Court inter alia, observed that the Letters Patent appeal attacking an order passed by the learned single Judge refusing to reject the plaint from want of disclosure of cause of action is maintainable under Clause 15 of the Letters Patent as the impugned order is a judgment within the meaning of the said clause. It was observed that the order refusing to reject the plaint for failure to disclose a cause of action can cause grave prejudice and loss to a defendant and if the defendant''s objection for rejection of plaint for failure to disclose a cause of action is accepted that would save the defendant from worry and expense of being put to trial and would spare the defendant from the agony of delay, expenses and mental torture. Mr. Sarkar pointed out that the said judgment also reiterated the view expressed in P.D. Shahs''s case (supra) relied upon by Mr. Roychowdhury that there was no legal bar under Order 7 Rule 11 in rejecting the plaint against some of the defendants.

13. Having considered the submissions made on behalf of the appellant and the Board of Trustees for the Port of Calcutta, we are inclined to agree with Mr. Sarkar that the order appealed against does decide the right of the appellant to be kept out of the suit since no cause of action had been made out against it and no relief had also been sought for against it.

14. In view of the observations made by the Hon''ble Supreme Court in Khimji''s case, we are inclined to take a broader view of the expression "judgment" and not follow the limited meaning given to the said expression in the Indian Tea Licensing Committee''s case (supra). We are, therefore, of the view that the order appealed against is appealable and the appeal as filed is maintainable. However, since the learned single Judge does not appear to have gone into the merits of the matter in detail and as no affidavits had also been filed on behalf of the parties, we are of the view that the matter requires reconsideration by the learned single Judge as to whether the defendant No. 5 is a proper party to the suit.

15. We, therefore, allow the appeal and set aside the order of the learned single Judge and remand the matter to the learned single Judge to consider the matter afresh on merits. We make it clear that our observation regarding the maintainability of the appeal should not be construed by the learned single Judge to mean that we have gone into the merits of the matter and the learned single Judge would be free to decide the question as to whether the defendant No. 5 is a proper party in the suit without being influenced by any observation that we may have made in passing.

16. The appeal and the stay application are both disposed of. The appellant will be free to pray for interim orders before the learned single Judge during the pendency of a decision on its application.

The appellant is also discharged from all undertakings.

All parties to act on the operative portion of this judgment on the usual undertaking.

A.K. Basu, J.

17. I agree.