TANUSREE ART PRINTERS Vs. RABINDRA NATH PAL

JUDGEMENT

(1.) -I had the benefit of reading the judgment of my learned Brother Sinha, J. In agreeing with the conclusions to the effect that the appeal in the instant case is maintainable under Clause 15 of the Letters Patent, I wish to state my own reasons therefor, as under:

(2.) The matter has been referred to the Special Bench for considering the correctness of the Division Bench Judgment of this Court in M/s. Merchants of Traders (P) Ltd. v. M/s. Sarmon Pvt. Ltd., reported in (1997)2 CAL LT 38(HC). By the said judgment, the Division Bench held that the appeal preferred against an order of a learned single Judge of this High Court is not maintainable under Clause 15 of the Letters Patent. The learned single Judge by his order under appeal before the said Division Bench had granted conditional leave to defend the suit in terms of Order 37 Rule 5 of the Code of Civil Procedure. In coming to the said conclusion, the Division Bench had followed the ratio of the earlier Division Bench Judgments in Hiralal Deb Gupta v. Salil Kumar Paul, reported in AIR 1973 Cal 320 and Bonwarilal Roy v. Sohanlal Daga, reported in ILR (1955)1 299. The ratio of those two earlier decision was that the order was not appealable because by refusing leave to defend or by granting conditional leave to defend under Order 37, it did not necessarily mean that the plaintiff would succeed in the suit. Order 37 as it stood then envisaged a decree being passed subsequently.

(3.) The latter Division Bench presided over by Ruma Pal, J. (As Lordship then was) noticed the amendment to Order 37 by the amendment of the Code of Civil Procedure on 1976 and was of the view that the said two decision in (1) Hiralal Deb Gupta and (2) Bonwarilal Roy (supra) can no longer said to be applicable to Order 37 as it stands after the amendment. The Division Bench was also of the opinion that by virtue of the decision of the Supreme Court in Shah Babu Lal Khimji v. Jayaben D. Kania & Anr., reported in AIR 1981 SC 1786 wherein it was observed as follows;