Mrs. Kusum Duggal vs Mrs. Kaushalya Jhingran And Anr.
2000 Latest Caselaw 1114 Del

JUDGMENT

Devinder Gupta, J.

1. This appeal has been preferred by the plaintiff appellant against the order passed by learned single Judge on 16-12-1999 during the course of recording the statement of Smt. Kaushalya Jhingran, D.W. 1. By the said order objection of learned counsel for the appellant was turned down that the original Will dated 13-11-1975 be not taken on record and be not allowed to be proved.

2. After notice was issued in this appeal, learned counsel for the respondent raised an objection about maintainability of appeal, which has been filed under Section 10 of the Delhi High Court Act, 1966. It is this question of maintainability of the appeal, which is being considered by us.

"the plaintiff/appellant filed, a suit for partition against defendants/respondents No. 1 and 2. The parties are brother and sisters. It was averred that Dr. (Major) Prem Narain Mehra died at Delhi on 11-12-1975 leaving behind the parties to the suit as his heirs and on the death of Dr. (Major) Prem Narain Mehra, his estate devolved upon the appellant and the respondents having 1/3rd share each therein and prayed for a decree for possession by partition directing separation of the appellant 1/3rd share therein by metes and bounds."

3. Suit was contested by respondent No. 1. After plaintiffs evidence, the suit was posted for defendants evidence. IA.8907/97 was filed by the defendant praying that the original Will dated 13-11-1975 of Dr. (Major) Prem Narain Mehra may be directed to be kept in sealed cover. On 12-9-1997 the application was decided by directing that Will be kept in sealed cover. IA. 9307/97 was filed by defendant under Order 13 Rule 2 of the Code of Civil Procedure seeking permission to produce the said Will.

4. On 22-10-1997 the Will dated 13-11-1975 of Dr. Prem Narain Mehra was taken out of the sealed cover. Objection was raised by learned counsel for the plaintiff that the said Will had been produced in Court much beyond the time allowed to the defendants to file documents. The defendants had not sought permission to file it. Therefore, the same be not permitted to be taken on record. This objection was overruled. The will was allowed to be taken on record and the delay in late filing of documents was condoned subject to payment of Rs. 300/- as costs. Learned Single Judge thereafter proceeded to record part statement of Dr. S. Kumar, as D.W. 1 on behalf of the defendants. Remaining examination of the witness was deferred. The defendants had not by that date appeared as witness in the suit.

5. Feeling aggrieved by the said order an appeal (FAO (OS) No. 112/98) was preferred by the plaintiff, which was disposed of by Division Bench on 13-8-1998 observing that learned Single Judge was not justified in recording the statement of defendants witness before examining the defendant without assigning any reason. Accordingly, the order dated 22-10-1997 was set aside. The will, which had been exhibited was ordered to be de-exhibited.

6. On 16-9-1999 the defendant appeared as her own witness as DW. 1. During the course of her statement, sealed parcel containing original Will dated 13-11-1975 was opened. Again an objection was raised by learned counsel for the plaintiff that Will was not filed at proper time and was produced unauthorisedly. He objected to the Will being taken on record stating that the Will was earlier sought to be proved through DW. 1 Dr. S. Kumar on 22-10-1997, which was objected to by him but the objection was overruled. The order taking the Will on record was challenged in appeal, which was allowed. Order dated 22-10-1997 was set aside. Therefore, it will not be permissible to permit the said Will to be taken on record. By the impugned order the appellant's objection was overruled observing that the order of Division Bench dated 13-8-1998 did not set aside that part of the order by which the will was taken on record. The said order only directed de-exhibition of the Will.

7. Learned counsel for the plaintiff/ appellant urged that the impugned order passed by learned Single Judge amounts to "judgment" within the meaning of the term, as incorporated in Section 10 of the Delhi High Court Act, 1966 and such appeal will be maintainable before a Division Bench. Learned counsel for the respondent reiterated his objection contending that the order is interlocutory in nature and does not amount to "judgment", therefore, appeal will not be maintainable.

8. We have considered the respective submissions. The Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, examined the scope, meaning and purport of the term "Judgment" used in Clause 15 of Letters Patent of Bombay High Court and approved certain tests to determine as to when an order passed by a trial Judge can be said to be "judgment". It was observed that in the course of trial of suit, the trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other. By way of illustration it was observed that an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents after the first date of hearing, an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other are purely interlocutory and cannot constitute "judgments" because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge. The Court further specified as follows that what type of interlocutory orders can be treated as "judgment" (Para 115 of AIR) :--

"Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matter 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."

9. Certain principles were laid down by the Supreme Court observing that these are some of the principles which might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a "judgment" within the meaning of the Letters Patent. By way of illustration some of the orders were referred to in the judgment, which may be treated as "judgments" further saying that it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-high impossible to envisage or provide for every possible contingency or situation so as to evolve a device or frame and exhaustive formula or strategy to confine and incarcerate the same in a strait-jacket. By and large the controversy, which was raging for about a century on the connotation of the term "judgment" was put on rest saying that the tests laid by Sir While, C.J. as also by Sir Couch, C.J. in their respective judgments in the Justices of the Peace for Calcutta v. The Oriental Gas Co., (1872) 8 Beng LR 433 and in T.V. Tuljaram Row v. M.K.R.V. Alagappa Chettiar, (1912) ILR 35 Madras 1, as modified by latter decisions of the Calcutta High Court should be borne in mind.

10. In Jugal Kishore Paliwal v. S. Sat Jit Singh, appeals from order of learned Single Judge of Delhi High Courts under Section 10 of the Delhi High Court Act were also held to be governed by the decision in Shah Babulal Khimji's case, (supra) saying that 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.

11. In the instant case without entering into the question as to the legality and validity of the impugned order passed by learned Single Judge, turning down the objection of learned counsel for the appellant, we are of the view that the said order cannot by any stretch of imagination would fall within the ambit of "judgment" on the tests as approved in Shah Babulal Khimji's case, (supra). The impugned order is purely an interlocutory order turning down the objection observing that part of the order, which was passed on 22-10-1997 by which Will was taken on record had not been set aside by Division Bench. As such the order would not be appealable since it cannot be treated as "judgment", more particularly on the ground that the grievance on the score can be corrected by the appellate Court in appeal against the final judgment, in case the decision in the suit will go against the plaintiff/appellant.

12. Dismissed as not maintainable. C.M. 1233/2000 Dismissed as infructuous.