KUNALA SUBBARAO Vs. P NAGARATNAYAMMA

JUDGEMENT

(1.) This appeal under clause 15 of the Letters Patent has been filed against a mere notice issued on 12-10-82 by our learned brother Lakshminaryana Reddy, J., in C. M. P. No. 12880/82 in A. S. No. 2269/82. The present appellants are the petitioners in the said civil Miscellaneous Application. they were sued by the respondent herein in O. S. No. 65/76 on the file of the Subordinate Judge, Kovvur for recovery of her steam launch by name "Swaraja Lakshmi", and for arrears of rent or profits for the period of April to end of June, 1976 at a rate of Rs. 600.00 per month and for future profits. The plaintiffs case was that she was the owner of the steam launch which she gave to the first appellant-defendant on lease for one year commencing from 1-8-74 and ending with 31-7-75 on a monthly rent of Rs. 350.00 and that the first appellant-defendant has failed to return and deliver the launch to her after the expiry of lease, thus rendered himself liable for damages. The second appellant was the second defendant, who stood surety to the first defendant in the suit. The suit was opposed by the first appellant-defendant and the second appellant-defendant, his surety. The trial Court overruled the defence and decreed the suit on 26-8-82 and directed immediate delivery of the launch to the plaintiff and also directed the first defendant to pay profits from the date of suit on 15-7-76 till the day the launch was delivered to the plaintiff at the rate of Rs. 350.00 per month. The present appellants feeling aggrieved by the above decree had filed A. S. No. 2269/82 in this Court and moved in the above miscellaneous application for stay of all further proceedings that might be taken by the plaintiff pursuant to the decree in the above mentioned O. S. 65/76 on the file of the Subordinate Judge, Kovvur. According to the procedure of this Court a regular first appeal is automatically admitted in the Registry and it is the miscellaneous application that comes for initial judicial scrutiny. Our learned brother Lakshminarayana Reddy. J., before whom the above C. M. P. came for orders. ordered notice to the plaintiff returnable in one week on 12-10-82. The defendants-appellants feeling aggrieved by that filed this appeal against that ordering of notice by out learned brother Lakshminarayana Reddy, J. The registry has taken objection to the maintainability of the appeal.

(2.) We have heard Sri Suryanarayanamurthy for the appellants at full length and we are fully satisfied that this particular appeal is wholly incompetent and cannot be maintained under clause 15 of the Letters Patent. It should be emphasised that the institution of an appeal is a statutory creation and is unknown to that grand old dame, common Law. This appeal is filed under clause 15 of the Letters Patent. The question whether an appeal, under clause 15 of the Letters Patents, is competent against a mere ordering of notice by a learned single judge should therefore be answered only on the basis of the meaning the word judgment bears in clause 15 of the Letters Patent. Clause 15 of the Letters Patent provides for a right of appeal only against a judgment passed by a learned single judge. If ordering notice within that meaning then appeal would be competent. The question therefore is whether in ordering notice on the appellants application for grant of stay, Lakshminarayana Reddy, J., has passed a judgment. It must be admitted that the meaning of the word judgment has sometimes been variedly interpreted in our High Court itself by some learned judges acting on the assumption that even ordering notice without finally adjudicating upon the merits of the C. M. P. would amount to passing of a judgment. But its ordinary meaning is one which Halsburys Laws of England gives us any decision given by a court on a question at issue between the parties (se Burrows Words & Phrases). According to this meaning of the word judgment, where there is no adjudication on merits, there can be no judgment. It appears to us that this view is preferable to the other which assumes that there can be a judgment even where there is no adjudication on the issue between the parties. In other words, the word judgment means adjudication of the issues between the parties, may be even ex parte. By ordering a mere notice the Court does not trench upon the merits and makes no adjudication on issues between the parties. It merely postpones the adjudication to a future date. Let us admit that such a postponement causes some inconvenience or even detriment to the party. But that inconvenience or detriment is not the result of an adjudication by the Court on any issue between the parties. It is merely postponing the hearing to a future date. That is not one of the issues between the parties and that is no adjudication at all. The court does not lose its jurisdiction over the matter by ordering notice nor would it become functus officio by passing such an order. Strictly specking the notice ordered would not in any way affect the rights of the applicant as such an order would have the effect of only postponing the hearing to a later date after service of notice on the party sought to be affected. It is really an act of refusal to adjudicate immediately and that might cause prejudice, but that is no adjudication and no passing of a judgment. The ordering of notice cannot by any reasonable standards be regarded as amounting to passing of a judgment on any issue between the parties. If such an order is not a judgment, clearly no appeal lies. The recent judgment of the Supreme Court is Shah Babulal Khimji v. Jayaben (reported in AIR 1981 SC 1786) approving the observations of Sri Arnold Whiel C. J. in Tuliaram Rows case (1912 ILR 35 Mad 1) clearly goes against the argument of the appellants. Arnold White C. J. in his judgment assumed that judgment is the function of an adjudication of the rights. He even said that such an adjudication must put an end to the entire suit or proceedings so far as the Court before which the suit or proceeding is pending is concerned. clearly ordering notice does not involve any adjudication of the rights of the parties, nor does it put an end to the entire suit or proceedings must put an end to the entire suit or proceedings so far as the Court before which the suit or proceedings is pending is concerned. Clearly ordering notice does not involve any adjudication of the rights of the parties, nor does it put an end to the proceedings in the sense in which the learned Chief Justice has used that word. Ordering of notice can be nothing more than a step towards obtaining the final adjudication in those proceedings. Eve where it might cause prejudice, it cannot be described as a judgment. It is a step in aid and such a step in aid isnt a judgment within the meaning of Letters Patent. In view of the above, we are unable to entertain this appeal.

(3.) But Sri Suryanarayanamurthy argued that it is the substance of an order that must be looked into and not the form and that even ordering of notice can at times amount to a rejection of the petitioners prayer for relief. It may be. But what Clause 15 of Letters Patent makes appealable is only positive adjudication but not refusal to grant immediate aid. but Sri Suryanarayana Murthys argument is slightly guilty of exaggeration. So long as it is permissible for the Court to adjudicate upon the C. M. P. on which a notice has been ordered, it would be theoretically impossible to contend that ordering of notice in such case affects anyones rights. There is scope for retrieving of the situation and there is scope for retrieving. That would exclude the possibility of any adverse effects being produced. In our view, this substance theory of adverse effects has therefore no substance. In any case, in view of the fact that Clause 15 of Letters Patent permits appeals only against judgments and as ordering of notice does not trench upon merits or constitute adjudication, no Letters Patent Appeal is competent against those orders.