SHESHGIRIDAS SHANBHAG Vs. SUNDERRAO

JUDGEMENT

(1.) This is an appeal from the order of Coyajee J. granting leave to the plaintiff to amend the plaint by inserting the claim of termination of the lease in suit on the ground of the alleged further breaches of two conditions of the lease after the filing of the suit, as set out in the order filed in Court. The plaintiff who is a landlord filed this suit to eject the defendant on the ground that the defendant had committed breaches of its conditions as set out in the plaint. The defendant filed his written statement denying the breaches. The parties went to a hearing and the Court heard evidence, we are told, for two or three days. It is alleged on behalf of the appellant that finding that the case as set out in the plaint would not be established, the plaintiff sought to rely on further alleged breaches. It was vehemently argued before the trial Court that the plaintiff should not be allowed to amend the plaint at that stage but the argument was not accepted. The learned Judge made an order granting leave to amend as asked by the plaintiff. The defendant has filed this appeal.

(2.) The first question is whether an appeal lies. Briefly put the plaintiff s case is that the defendant was a tenant, that he had committed breaches of the terms of the tenancy as set out in the plaint and therefore the plaintiff was entitled to possession. That is the; cause of action set out in the plaint. By the amendment allowed by the Court the plaintiff will be permitted to contend at the hearing that the defendant should be ejected also on the ground that after the filing of the suit he had committed further breaches of the terms, as set out in red ink in the plaint. The effect of the amendment only is that the plaintiff will be allowed to raise that contention. The granting of leave to amend does not amount to admitting that those contentions are valid, or that the plaintiff will get the relief because of those contentions. They will be decided:at the hearing on the merits of the disputes between the parties. At the present stage the question to be considered is whether an appeal lies from an order granting leave to amend, as made in the present case. The discussion should be considered as confined to the facts here.

(3.) On behalf of the appellant Mr. Desai relied on two judgments of the Calcutta High Court, viz. The Justices of the Peace for Calcutta v. The Oriental Gas Company (1872) 8 Beng. L.R. 433, and Hadjee Ismail Hadjee Hubbeeb v. Hadjee Mahomed Hadjee Joosub: Rohima Bye v. Hadjee Mahomed Hadjee Joosub (1874) 13 Beng. L.R. 91. In those cases the question, what is a judgment within the meaning of Clause 15 of the Letters Patent came to be considered by the Court. Under the Civil Procedure Code an order made under Order VI, Rule 17, is not appealable. Therefore, the appellant can succeed in his contention that an appeal lies only if the case is covered by the word " judgment" in Clause 15 of the Letters Patent. According to those two decisions (which are accepted as classical pronouncements) a judgment must finally determine some right between the parties. That view is accepted by the Judicial Committee of the Privy Council in Hurrish Chunder Chowdhry v. Kali Sundari Debia (1882) L.R. 10 I.A. 4. In spite of counsel s industry Mr. Desai has been unable to point out any precedent where this question was considered and decided by any Court. There is no reported decision in favour of the appellant.