Hari Singh vs Kharaiti Lal & Sons
1995 Latest Caselaw 66 Del

JUDGMENT

D.K. Jain, J.

(1) This appeal under Clause 10 of the Letters Patent, by the defendant in the suit, is directed against the order dated 03 September 1993 passed by the learned Single Judge whereby further opportunity was declined to the appellant to cross-examine PW-2 and further the time granted to him to lead his evidence was restricted to three days as against ten days time requested by him.

(2) The respondent/plaintiff filed a suit for specific performance of agreement to sell dated 08 August 1978 for sale of a property in Green Park, New Delhi, which was resisted by the appellant; on which a number of issues were framed. The matter came to trial. During trial, it appears, that while plaintiff's Karta (Public Witness -2) was being cross-examined, certain questions by appellant were disallowed as being not relevant or inadmissible and repetitive; the question of proper stamping of documents was not forthwith decided; his application for amendment of issue No. 2/framing of additional issue was not decided and was kept pending; further cross- examination of PW-2 was not permitted and his evidence closed by order dated 03 September 1993 and his request to examine 40 witnesses.and to fix ten days for the purpose was turned down. It is this order of 03 September 1993, which is impugned in the appeal, seeking directions for deciding the application for amendment or framing of. additional issue and quashing the orders regarding relevancy and admissibility etc. of the questions put in cross-examination and disallowed by the learned Single Judge. A further direction is sought for deciding a Civil Contempt Petition which is stated to be pending.

(3) We have heard the appellant, who appeared in person.

(4) The first question for consideration is whether on the facts stated the appeal under Clause 10 of the Letters Patent or Section 10 of the Delhi High Court Act lies. The Letters Patent by Clause 10 confers a right of appeal against a "judgment". So does the Delhi High Court Act. What kind of an order will constitute a judgment will depend on the facts and circumstances of each case and on the nature and circumstances of the order passed The term "judgment" has not been defined in Clause 10 of the Letters Patent. As to what order would constitute a judgment within the meaning of the said clause has been a subject of controversy, till a matter from Bombay came before Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania & Another , wherein Clause 15 of the Letters Patent (Bombay) was involved.

(5) As noticed in Shah Babulal Khimji's case, a judgment can be of three kinds, viz., (1) a final judgment; (2) a preliminary judgment, and (3) intermediary or interlocutory judgment. A judgment which decides all the questions or issues in controversy so far as the learned Single Judge is concerned and leaves nothing else to be decided is a final judgment, i.e., when the suit for action brought by the plaintiff is dismissed or decreed in part or in full. A preliminary judgment is normally based on a preliminary objection regarding the maintainability of the suit, consequent where to the suit is either dismissed or the objection over-ruled. Such an order decides an important aspect of the trial which affects a vital right of one of the parties and amounts to a judgment appealable to a larger Bench. However, every interlocutory order cannot be regarded as a judgment. Such of the interlocutory orders, which contain the quality of finality but are not covered under Order 43 Rule 1 Civil Procedure Code . are judgments within the meaning of Clause 10 of the Letters Patent are appealable. Such an order can be a judgment, if the adverse effect on the party concerned is direct and. immediate rather than indirect or remote and it works serious injustice to the party concerned.

(6) In the instant case, the impugned orders are made during the course of recording of evidence and relate to the admissibility or relevancy of evidence and the conduct of the proceedings. These are of ancilliary nature and do not have the attribute of finality. In Shah Babulal Khimji's case, it was held that the order of a learned Single Judge relating to the "relevancy" or "admissibility" of a question or document is not a judgment for the purpose of Letters Patent. The Supreme Court held as under: "THUS,in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment."

(7) From the above quoted passage, it is evident that the orders on the question of relevancy or admissibility of questions, made by the Single Judge, do not amount to judgment, conferring a right of appeal in Clause 10 of the Letters Patent

(8) A similar view was expressed by a Division Bench of this Court (of which one of us, the Chief Justice, was a member) in Selected Marble Home Vs. Arun K. Gupta 1994 (30) Drj 751 , Rlr (DB) 454. In that case, the learned Single Judge, without deciding the question as to whether the agreements in question were agreements of licenses or whether they really amounted to lease deeds or agreements to lease, passed an order for sending the documents for adjudication to the Collector of Stamps. A question arose whether this type of order could be challenged in appeal under Section 10 of the Delhi High Court Act read with Order 43 Rule 1 Civil Procedure Code . The Division Bench, while following the afore extracted portion of the passage in Shah Babulal Khimji's case (supra), held that if an order deciding whether the document is relevant or admissible is not a Judgment a fortiori an order sending the document for adjudication cannot be a judgment.

(9) It appears that in the instant case after questions in cross-examination of PW-2 had been disallowed on the aforesaid grounds, on 03 September 1993, the appellant sought the matter to be adjourned for another date for further Cross-examination of the witnesses. As is recorded in the said order (order dated 03 September 1993), the learned Single Judge felt that the witnesses had been sufficiently cross-examined for several days, even repeatedly on earlier dates and many questions had been found irrelevant and repetitive. Being of the view that sufficient opportunity for cross-examination had been given, the evidence of PW-2 was closed. Order as to it, in our view, does not amount to judgment within the meaning of Clause 10 of the Letters Patent.

(10) One of the grounds taken in the appeal (ground No. 7) is regarding the learned Single Judge not promptly deciding the appellant's objection about the non-stamping of the documents, which documents had already been exhibited on 16 May 1988 as Ex.PW-2/3 to Ex.PW-2/8 in the examination-in-chief of PW-2. On 19 August 1993, the appellant, during his further cross- examination of PW-2, raised a question of insufficiency of stamps on -these documents. The learned Single Judge ordered that the point will be looked into at the time of arguments. The appellant's request for the point being decided forthwith was disallowed. The documents having been exhibited in 1988 and objections about insufficiency of stamp thereon having been raised almost five years later, there appeared to be no urgency at that stage to decide the issue forthwith. As observed by the learned Single Judge, the question will be duly considered at the time of final arguments.

(11) The appellant, in this context, referred to a judgment of this Court in R.B. Suraj Bhan Vs. Dr. Dewan Singh Ilr (1974)II Delhi 581, to contend that though Ex.PW-2/3 to Ex.PW-2/8 were exhibited in 1988, the marking of documents as exhibits could not be regarded as admission of documents into evidence within the meaning of Section 36 of the Stamp Act, 1899. This is a matter for consideration of the learned Single Judge at the time of arguments in the case. No order in this respect having been made, we feel it would not be proper for us to comment on the plea raised. Another grievance of the appellant is that he wanted to examine 40 witnesses for which he needed ten days time but the learned Single Judge disallowed the same and fixed it only for three days. This order again does not amount to a judgment and in any case there is nothing in the order to suggest that the number of witnesses sought to be produced by the appellant has actually been curtailed and the observation appears only to fix the number of days for defendant's evidence.

(12) Before we part with the order, we may also deal with an application filed by the appellant, inter alia, praying that in case this Court feels that this appeal is not maintainable, it may be treated as a writ petition under Article 226 of the Constitution of India. In view of the judgment of the Supreme Court in Naresh Shridhar Mirajkar & Others Vs. State of Maharashtra & Another , wherein it has been held that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter before him for adjudication cannot affect the fundamental rights of a citizen under Article 19(1) of the Constitution and thus such an order is not amenable to be corrected in writ jurisdiction under Article 226 of the Constitution of India, we cannot accede to the request of the appellant, and accordingly reject the application.

(13) In view of the foregoing discussion, we are of the opinion that this appeal is incompetent and is to be dismissed as such. We order accordingly.