LAXMINARAYAN TAMKORWALLA Vs. UDAIRAM KHEMKA

JUDGEMENT

(1.) This appeal is directed against an order of Sankar Prasad Mitra, J. dated the 18th March 1959 refusing to recall an earlier order made by him on the 3rd June 1958 by which he directed the issue of a duplicate writ of summons upon the appellant and ordered the Sheriff to accept the writ within fourteen days of the signing of the order.

(2.) The facts of this case are somewhat extraordinary and illustrate how a suit can be kept pending for an indefinite length of time by clever manipulations. On the 9th of February 1938 the plaintiff respondent instituted a suit for a declaration that a partnership firm of which the appellant's father was alleged to be one of the partners, stood dissolved with effect from the 12th of April 1935 and for certain other reliefs. In that suit there were three defendants of whom the appellant's father was the third. For some reasons which do not appear from the materials before us, the suit remained undisposed of for eleven years in the first instance and on the 10th of May 1949 an order was made for recording the death of Harakchand Tamkorwalla, the father of the appellant and the third defendant in the suit and for substitution of the appellant in his place and for issue of a fresh writ of summons, the returnable date being two months from the date of the signing of the order and for directions upon the Sheriff to receive the writ within a fortnight from the signing of the order. On the 3rd September 1949 the writ was issued and two days thereafter the writ was lodged with the Sheriff for service. On the 7th September 1949 the Sheriff made over the writ for effecting service to a bailiff named Rahim. The returnable date of the writ, according to the terms of the order dated the 10th of May 1949, expired on the 19th of September 1949. Thereafter the suit again went underground for a period of five years and we don't know what happened during this period. In January, April and July 1954 the suit appeared on the peremptory list but it again went underground for the third time for another period of four years and we are again left in the dark as to what happened during this period. On the 17th May 1958 an application was made for the issue of a duplicate writ of summons in terms of the order of the Court dated the 10th of May 1949 and for a direction upon the Sheriff to receive the writ within fourteen days from the signing of the order to be made. No notice of this application was served upon the appellant. In order to explain the delay in making the application, the plaintiff respondent alleged that his previous Attorney Messrs. Khaitan and Company did not inform him of the fact that the original writ of summons had not been returned by the Bailiff and that the Bailiff who was entrusted with the duty of effecting service of summons had gone away to Pakistan. The plaintiff alleged that for this default on the part of his original Attorney he obtained a change of Attorney from Messrs. Khaitan and Company to Messrs. Nahar and Dutta. The application for issuing a duplicate writ of summons made by the plaintiff respondent was granted by the Court on the 3rd June 1958 but this order, as I have already said, was made without any notice to the appellant. The duplicate writ of summons was served upon the appellant on the 4th July 1958 and on the 1st August 1958 the appellant filed a written statement without prejudice to his rights and contentions that the suit should be dismissed as against him and that there was no valid and sufficient ground for issuing a duplicate writ of summons. On the 5th December 1958 the appellant made a substantive application for setting aside the order dated the 3rd June 1958 by which the duplicate writ of summons was ordered to be issued upon him. This application was dismissed by the learned Judge by an order dated the 18th March 1959 and the appellant has filed this appeal against that order.

(3.) Whatever may be the merits of the contention urged on behalf of the appellant, a preliminary objection has been taken on behalf of the respondent to the effect that the appeal is not maintainable because the order appealed from is not a judgment within the meaning of Clause 15 of the Letters Patent. What is or is not a judgment within the meaning of Clause 15 of the Letters Patent has been the subject-matter of so many decisions that I do not pretend to make any useful addition to the existing literature on the subject. It is well known that according to Sir Richard Couch, C, J., in order to be a judgment within the meaning of Clause 15 of the Letters Patent, the adjudication must be "a decision which affects the merits of the question between the parties by determining some right or liability". This test was laid down in the year 1872 in the case of Justices of the Peace for Calcutta v. Oriental Gas Co. Ltd. 8 Beng LR 433. In the year 1912 a Full Bench of the Madras High Court laid down the proposition that in Order to be a judgment it is not necessary that the decision must be one affecting the merits of the suit or proceeding (See the observations of Sir Arnold White C. J. in the case of Tuljaram Row v. Alagappa Chettiar, ILR 35 Mad 1). It was at one time supposed that these two views are in conflict with each other and that the definition of the word 'judgment' as given by the Madras High Court was wider than the definition given by Sir Richard Couch in the case of Justices of the Peace for Cal-cutta, 8 Beng LR 433. In Asrumati Debi v. Rupen-dra Deb, the Supreme Court after an elaborate consideration of the two apparently conflicting views came to the conclusion that the conflict was more apparent than real. The Supreme Court interpreted the definition given by Sir Richard Couch to mean that according to that definition the adjudication must involve "the determination of some right or liability though it may not be necessary that there must be a decision on the merits". In other words, according to the Supreme Court, in order to be a judgment within the meaning of Clause 15 of the Letters Patent the adjudication need not be a decision on the merits of the controversy between the parties in the suit but it must nevertheless be a decision affecting the merits or the case. The Supreme Court then proceeded to observe as follows: