SRIMATI MATHURA SUNDARI DASSI Vs. HARAN CHANDRA SHAHA

JUDGEMENT

(1.) With regard to the preliminary objection which was raised by Mr. Jackson, when that point was taken, the case was argued upon the assumption that the suit had been dismissed under Order IX, Rule 8, which deals with default of appearance, and, therefore, I propose, whatever may have been the real position, to deal with the argument which was presented to us by the learned Counsel upon the basis that the order by Mr. Justice Imam dismissing the suit was made under Order IX, Rule 8. That order was made on the 5th of February 1915. Then an application was made on the?5th of March of this year to set aside that order of dismissal. That was heard by the learned Judge and was refused, and the plaintiff appealed from that order of refusal to restore the case and set aside the dismissal, and a preliminary point has been taken by the learned Counsel for the defendant that no appeal lies from such an order.

(2.) It was argued by the learned Counsel for the defendant, Mr. Jackson, firs , that the order in question was not a judgment within the meaning of Clause 15 of the Letters Patent; and, secondly, that if it is not within Clause 15 of the Letters Patent, the Civil Procedure Code has no application to an appeal from a Judge of the High Court to other Judges of that Court.

(3.) As to the-first point, namely, whether the order in question was a judgment within the meaning of Clause 15, personally I should not have had much doubt or hesitation in holding that the order was a judgment within the meaning of that clause, if it had not been for some cases which were cited to us. It is quite true that the learned Judge had no discretion upon the question of the dismissal of the suit under Order IX, Rule 8. In fact, the rule expressly says, "where the defendant appears and the plaintiff does pot appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed." The Judge has no option and under such circumstances he must dismiss the suit. But when the application to set aside that dismissal is made, in my opinion, the Judge has a discretion, and he must exercise his judgment on the materials before him. The question on which he has then to exercise his judgment and his judicial discretion may, as in this case, be a matter of great importance: It is no less than whether the plaintiff under the circumstances of the case shall be allowed to prosecute his suit or for all time be debarred from trying to enforce his claim. Clause 15 obviously refers to judgments which in common parlance may be called orders. In my opinion, the decision so arrived at on such a question as above stated would be a judgment within the meaning of the word judgment in the Letters Patent. The judgments, however, in some of the cases which Mr. Jackson has cited to us throw some doubt upon the correctness of the above view. I do not refer to them all, though I have considered them : the most important are Hurrish Chunder Chowdhry v. Kali Sunderi Debi 10 I.A. 4 : 9 C. 482 : 12 C.L.R. 511 : 7 Ind. Jur. 161 : 4 Sar. P.C.J. 406 and Gobinda Lal Das v. Shiba Das Chatterjee 33 C. 1323 : 10 C.W.N. 986 : 3 C.L.J. 545. I only pause to remark that the exact point which arises in this case has not been decided, as far as I know, in any reported case, and I am informed that many such appeals, as this, have been heard in the Court of Appeal here, but it is said that in one unreported case the decision of this Court was that an appeal would not lie. The decision in the present case on the application of the plaintiff does, in my opinion, decide a question which affects the rights of the plaintiff. He alleges that he should be allowed to prosecute his claim. A. refusal of the application debars him for all time. If he had put in a plaint which was ill-framed and that had been struck out by the learned Judge, according to the decision in one of the cases, he would have a right of appeal within the very terms of the judgment in that case-that was an illustration in the case in Hurrish Chunder Chowdhry v. Kali Sunderi Debi 10 I.A. 4 : 9 C. 482 : 12 C.L.R. 511 : 7 Ind. Jur. 161 : 4 Sar. P.C.J. 406, yet when an order is made which debars his suit for all time, according to the argument of Mr. Jackson, he is not to have a right of appeal.