1958 Supreme(Cal) 248

HIGH COURT OF CALCUTTA
P. B. CHAKRAVARTTI, S. C. LAHIRI
TULSIRAM BHAGWANDAS - Appellant
Versus
SITARAM SRIGOPAL - Respondent
A. F. O. O.  99  Of  1957
Decided On : SEPTEMBER 16, 1958

An order setting aside a decree and restoring a suit is not a judgment and therefore not appealable.

Headnote:

APPEAL - Maintainability - Order setting aside a decree and restoring a suit - Not a judgment - No appeal lies.

Fact of the Case:

The Respondent firm brought a suit against the Appellant firm for specific performance of a contract of sale by delivery of the goods sold and, in the alternative, for the refund of a sum of Rs. 35,200/- which had been paid as the full price of the goods, as also a further sum of Rs. 1,32,559/- as damages. The Appellant's defence was that it had always been ready and willing to deliver the goods, but it was the Respondent who had asked for a cancellation of the contract and a refund of the price paid on the plea that the goods were no longer required. The contract, it was said, had thereupon been cancelled and a cheque for a sum of Rs. 35,200/- had been. sent to the Respondent which the Respondent had refused to accept. The Appellant pleaded further that it was still ready and willing to refund the sum of Rs. 35,200/- but it repudiated the Respondent's claim for a delivery of the goods as also the alternative claim for damages.

Finding of the Court:

The learned Judge took the view that on the day the suit had been disposed of, there had been no appearance by or on behalf of the Plaintiff-Raspondent. He therefore thought that he was entitled to grant the relief prayed for if he found that the Plaintiff-Respondent was entitled to it. On the merits, he held that the fault for the non-appearance did not He with the plaintiff firm which was ready with its witnesses, but that it lay entirely with its lawyers. On that finding he held that the ends of justice required that the decree should be set aside and the suit restored to the list and he made an order to that effect with a direction on the Respondent to pay the Appellant all costs thrown away, as also the costs of the application.

Issues: 1. Whether in setting aside a decree by which he had himself allowed a part of the Respondent's claim in the suit and disallowed the rest and restoring the suit to the list for further trial, G. K. Mitter, J. was right? 2. Whether an appeal at all lies from his order.

Ratio Decidendi: 1. The decree could not under the provisions of the Code be set aside and the suit restored on an application, if the Plaintiff-Respondent had appeared in the suit on the 11th March, 1957. He did appear by one of his Counsel, as I have tried to show. 2. The essence of the Code, as is well-known, is to be exhaustive so far as it goes and as respects matters for which the Code expressly provides, there is no room for the exercise of any additional jurisdiction under Section 151. 3. The date was a date of an adjourned hearing and on the assumption I have made, the plaintiff was absent. If, because he was absent, the learned Judge had proceeded under Order 9, Rule 8 and had decreed the admitted part of the claim and dismissed the rest of the suit for default, an application under Order 9, Rule 9, for a restoration of the suit would undoubtedly lie. But the learned Judge could also make such other order as he thought fit and that was what he in fact did. 4. The learned Judge in the present case did not proceed on the basis of default at all, but decided the suit on such evidence as he had before him. He answered the issues and recorded his findings on them on, as he expressly said, the evidence; he allowed the claim for a refund of the price paid for the goods, because the Plaintiff proved it by evidence and the Defendant did not repudiate it; but he dismissed the claim for damages, because, in the absence of any evidence, he could not come to any conclusion as to whether any loss had been suffered by the plaintiff. 5. The dismissal of this part of the plaintiff's case was thus a dismissal on the merits for lack of evidence and not a dismissal for default of appearance. 6. Whether the Plaintiff appeared on the day on which the suit was disposed of or failed to appear, there could not be, in view of the nature of the decree passed by the learned Judge, any application for a restoration of the suit in either event. 7. The practice of a Judge recalling an order on just grounds before he has signed it is not peculiar to the Original Side of the Court, but obtains in other Courts as well. 8. A large number of decisions were cited on each side for showing when an order was a judgment and when it was not. I do not consider it necessary to embark upon a discussion of that much-vexed question, because there is a direct authority of a Division Bench of this Court which is against the appellant's contention and which we are bound to follow, unless we consider it necessary to make a reference to a Full Bench. 9. The reason why an order made under Rule 9 of Order 9 is not appealable is that it is not a judgment and the reason why it is not a judgment is that it merely sets aside the decree passed and restores the suit, but decides nothing. The order in the present case, though it cannot be said to be an order under Rule 9 Order 9, is yet an order merely setting aside the decree and restoring the suit for further hearing. This order also decides nothing and therefore the principle which bars an appeal from an order made under Rule 9 of Order 9 applies equally to this order and equally bars an appeal.

Final Decision: The present appeal is not maintainable and must therefore fail. It is accordingly dismissed, but as our finding on the merits of the case, is in the appellant's favour, there will be no order for costs.