GOUR MOHUN MULLICK Vs. SMNOYAN MANJURI DASSI

JUDGEMENT

(1.) This is an appeal by one Gour Mohun Mullick, one of the defendants in the suit, from the judgment of my learned brother Mr. Justice Rankin whereby he dismissed an application which had been made by the appellant. It arises in connection with litigation in respect of Gopal Lall Seal's estate, which, it is said, has occupied much time of this Court; and it is only necessary for me to mention that there was a settlement in this Court arrived at on the 4 of April 1919 and a consent-decree passed in a Suit No. 1223 of 1917 in which Gour Mohan Mullick and others were plaintiffs and Srimati Noyan Manjuri Dassi and others were defendants. The present suit is a suit by Srimati Noyan Manjuri Dassi--a person of unsonnd mind--by her grandmother, Srimati Brindarani Dassi, against Kanto Mohun Mullick, Gour Mohun Mullick (who is the appellant in this appeal) and others; and the object of the suit is to obtain a declaration that the consent-decree to which I have referred, is not binding upon the plaintiff, and that her interest is not affected in any way by the same, and that, if necessary, the said decree may be set aside and that Suit No. 1223 of 1917 as well as the different appeals arising therefrom may be heard on the merits. There are other incidental reliefs asked for in the suit.

(2.) The appellant, Goar Mohun Mullick, who if, as 1 have said, one of the defendants in the suit, made an application on the 10 April 1920 to the learned Judge on the Original Side that the plaint in the suit brought by Srimati Noyan Manjuri Dassi might he taken off the file, or for an enquiry whether the suit was properly instituted and whether it was fit and proper and for the benefit of the plaintiff, that the suit should be further prosecuted and that all further proceedings should be stayed in the meantime and that Srimati Brindarani should be directed to furnish security for costs and that all proceedings should be stayed until such security was given. On the hearing of that application, the learned Judge delivered a judgment and directed that the plaintiff should give particulars of certain allegations which were contained in the plaint and, on a subsequent occasion after these particulars had been given, he delivered a second judgment; and I propose to read three passages from that judgment to show what was the conclusion at which he arrived. After stating what was the rule with regard to an application such as this, taking a passage from Daniel's Chancery Practice as his guide, he proceeded as follows: i propose, therefore, to consider, first, whether this in a plain and strong case, as appearing upon such evidence as can be given and considered upon a mere interlocutory application, first, for saying that there is no substance or possibility of benefit to the lunatic in the action, and, secondly, whether the present nest friend has been shown to be unfit to be allowed to continue in that capacity." Dealing with the first point, which is the material point in the consideration of this appeal, the learned Judge said after discussing the evidence: "On these lines and broadly speaking, I am of opinion that it would be wrong to hold within the meaning of the passage which I have just sited that this is a suit which can be seen to have no basis in the benefit of the lunatics and to deserve to be terminated." And, in order to make the position which the learned Judge was taking up clear, towards the end of the judgment he said: "It remains for me to add one matter by way of explanation. I have hell that I am not prepared upon this proceeding to say that the suit is either mala fide or entirely unsubstantial be that there would be an abase of the process of the Court in allowing it to go on, But I want it to be distinctly understood that this judgment is not to be taken as the approval of a Court administering a lunatic's estate to the institution of this suit. That is an entirely different matter."

(3.) Upon the hearing of this appeal the learned Counsel for the plaintiff-respondent look the point that there was no right of appeal from the learned Judge's judgment, in as much as it was not a "judgment" within the meaning of Clause 15 of the Letters Patent of thin Court. The well-known passage in the case of Justices of the Peace for Calcutta V/s. Oriental Oat Co. 8 B.L.R. 433 at p. 432 : 17 W.R. 364 (the passages appearing at page 452) was relied upon by the learned Counsel for the plaintiff respondent. That pass-age which is families to us all is as follows: "We, think that judgement in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between a being that a final judgment determine the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it leaving other matter to be determined." It has been held several times in thin Court that that definition is not an exhaustive definition and that whenever a point similar to the one, which I am now discussing, is taken, the Court has to decide whether the particular order in question is a judgment" within the meaning of Clause 15, having regard to the nature of the order. In this case, the learned Counsel for the appellant, Gour Mohun Mullick, urged that the defendant-appellant has a right to have the suit stopped on the ground that it had been shown that the unit was an abuse of the process of the Court, in that it had not been brought for the benefit of the lunatic but far some ulterior and improper motive, and, he further urged, that that right had been finally determined by the learned Judge and that, consequently, this appeal would lie, In my judgment, the alleged right," if that word can be properly applied in this connection, is not such a right as is contemplated by the definition of the learned Chief Justice which appears in Justices of the Peace for Calcutta V/s. Oriental Gas Co. 8 B.L.R. 433 at p. 432 : 17 W.R. 364, It is true that the defendant had a right to apply to the Court to have the plaint taken off the file on the ground that the suit had not been brought for the benefit of the lunatic plaintiff, but it was in the discretion of the learned Judge to decide upon the materials which were then before him, whether he would make that order or whether he would allow the suit to proceed to trial. The learned Judge has decided, in effect, that upon the materials then before him and upon the application which was made to him by the defendant appellant he could not see his way at that stage to stay the suit The learned Judge has not decided finally the question whether the suit has been brought for the benefit of the lunatic or whether it is brought mala fide or whether it is an abuse of the process of the Court, In view of the passage in the learned Judge's judgment which I have read, it is clear that the issue as to whether the suit is for the benefit of the lunatic or is brought mala fide or is an abuse of the process of the Court is still open and can be raised at the trial. In fact, the decision of the learned Judge really amounts to no more than a decision as to the procedure which is to be followed, the result being that in his judgment the suit should proceed to trial. In my opinion, the learned Judge's judgment does not amount to a decision which affects the merits of the question between the parties by determining some right or liability. It is not, therefore, a "judgment" within the meaning of Clause 15 of the Letters Patent and consequently there is no right of appeal. In my judgment, the appeal, therefore, must be dismissed.