CHANDO DEVI Vs. MUNICIPAL COMMITTEE

JUDGEMENT

(1.) This is an appeal under Clause 10 of the Letters Patent against an order of my Lord the Chief Jus-lice setting aside the abatement of an appeal filed by the Municipal Committee of Delhi, the respondent.

(2.) Briefly stated the facts are: On 6th July, 1946, Mst. Inder Devi brought a suit for an injunction restraining the Municipal Committee, Delhi, the defendant respondent, from raising a certain construction and thereby obstructing the plaintiff's Passage to and from a building which belonged to her. The suit was decreed by the trial Court and the appeal filed by the Municipal Committee was dismissed by the Senior Subordinate Judge, Delhi, on 16th June, 1950. When the Second Appeal preferred by the Municipal Committee came up for hearing in this Court on 15th December, 1953, it transpired that Mst. Inder Devi, the sole respondent in the appeal, had died on 31st December, 1951. The appeal was accordingly dismissed as having abated. The same day, viz. on 15th December, 1953, the Municipal Committee submitted an application for setting aside the abatement under Order XXII, Rule 9, Civil Procedure Code, and for impleading Mst. Chando Devi, daughter of the deceased, as her legal representative. The application was opposed by Chando Devi stating that the Municipal authorities were aware of the death of Mst. Inder Devi, as they had made a note of her death in the relevant registers On 3rd January, 1952, mutation of the building which belonged to Inder Devi was sanctioned in her name in February, 1952, and house-tax in respect of that building was being realised from her since then. The learned Chief Justice did not consider these factors sufficient to attribute knowledge of the death of Inder Devi to the particular Department of the Municipal Committee, which dealt with the prosecution of Pending suits, appeals or revisions on behalf of or against the Municipal Committee. The application was accordingly accepted and the abatement set aside, vide, his order dated 30th November, 1954. It is against this order that the present appeal under the Letters Patent is preferred by Mst. Chando Devi on a certificate.

(3.) A preliminary objection that the appeal is not competent is being raised on behalf of the respondent, for the order under appeal, it is stated, does not amount to a 'judgment' within the meaning of Clause 10 of the Letters Patent. Maria Flaviana Almeida v. Ramchandra Santuram, AIR 1938 Bom 408, is a direct authority on the point. There Beaumount, C. J., (who prepared the judgment of the Division Bench with which B. J. Wadia, J. agreed) accepted the classical definition of the word 'judgment' given in Justices of the Peace for Calcutta v. Oriental Gas Co., 8 Beng LR 433, as meaning a decision which affects the merits of the question between the parties by determining some right or liability. The learned Judges further observed :- "An order setting aside an abatement does not affect the merits of the dispute between the parties, though it certainly determines a right, because in the absence of such order the plaintiff is debarred from suing the defendant for the amount claimed. The order is really one in procedure. The plaintiff originally had a cause of action which through no fault of their own Came to an end by the death of their opponent, and the effect of setting aside the abatement is merely to excuse delay in restoring the suit to an actionable condition." A contrary view taken by the Calcutta High Court in Sarat Chandra Sarkar v. Maihar Stone and Lime Co. Ltd., ILR 99 Cal 62 : (AIR 1922 Cal 335), was not accepted, Particularly because a Bench of the same learned Judges in another case decided only a few months later: Maharaj Kishore Khanna v. Kiran Shashi Dasi, ILR 49 Cal 616 : (AIR 1922 Cal 407) look the view that an order made under Order IX, Rule 9, Civil Procedure Code, restoring a suit dismissed for default could not be regarded as 'Judgment' under Clause 15 of the Letters Patent of that Court and was, therefore, not appealable. There appears to be no distinction jn principle between an order restoring a suit under Order IX, Rule 9 and an order setting aside an abatement under Order XXII, Rule 9, Civil Procedure Code, which too has the effect of restoring the suit. If the one order is a 'Judgment', the other must also be.