KARAM SINGH Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a letter patent appeal directed against the order of a learned single Judge of this court, Mr. Mian Jalal -ud -Din J, allowing the application of one,, Mahesh Dass Sethi, to be impleaded as a party to a writ petition.

(2.) AT the preliminary hearing for admission the question arose whether the order is appealable under clause 12 of our Letters Patent. The learned counsel for the petitioner contended that it was and placed reliance on the decisions of this court reported as AIR 1962 J&K: 42 AIR 1065 J&K: 180, AIR 1969 J&K: 52 and AIR 1962 J&K: 190. Of these the decision reported as AIR 1969 J&K 52 alone deals with the question before us. Clause 12 of the Letters Patent reads thus: "And we do further ordain that an appeal shall lie to the said High Court of Jurisdicature from the judgment (not being a judgement passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence) of one Judge of the said High Court of one Judge of any Division Court and that notwithstanding anything herein before provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, consistently with the provisions of Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of the judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors and be heard by Our Board of Judicial Advisers for report to Us."

(3.) IN our opinion an order of a learned Single Judge would amount to judgment under this clause if it finally determines some claim or right of the aggrieved party irrespective of the fact whether such order is made in the main cause or suit or in proceedings incidental or ancillary thereto. The same principle was stated by this court in AIR 1969 J&K: 52 on a consideration of the various authorities, in these words: "On a careful consideration of the aforesaid authorities, we think that the tests laid down by the Nagpur and Bombay High Courts in the aforesaid rulings are sound and should serve as useful guides for determining the right of appeal under Cl -12 of Our letters Patent. Respectfully agreeing with and following the enunciation of law in those rulings, we find that the order, in the instant case, though it does not finally dispose of the suit protanto determines the rights of the parties and amounts to a judgment as contemplated by Clause 12 of the Letters Patent" in particular, it was held therein as under : "The legal position that emerges, therefore, is that orders of the character specified in Section 104 and Order 43, Rule 1, Civil P.C. excepting clause (JJ) thereof, would be construed as judgments and an appeal against any one of such orders would lie to the...Division Bench of the High Court notwithstanding the fact that it is passed by one of the Judges of the High Court sitting on the original side."