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HIGH COURT OF CALCUTTA
Mukul Gopal Mukherji & Sidheshwar Narayan, JJ.
Robin Paul & Ors.
vs.
Kumkum Mittal & Ors.
Civil Appeal No. 481 of 1994
Decided On: February 19, 1996
LETTERS PATENT - JUDGMENT - APPEALABILITY - ORDER REFUSING TO RECALL EARLIER ORDER FOR COMMISSION TO EXAMINE WITNESS - NOT APPEALABLE - OR. 26 CPC - S. 151 CPC - OR. 47 R. 7 CPC - OR. 43 R. 1 CPC - CLAUSE 15 LETTERS PATENT.
Fact of the Case:
In a suit, an application was made for examination of a witness on commission on the ground of illness. The application was allowed by the Learned Single Judge. Subsequently, it was contended by the appellants that the sole ground for issuance of the commission vanished and accordingly prayed for recall of the order of commission and alternatively for review of the earlier order. The Learned Single Judge rejected the application.
Finding of the Court:
The Court held that the impugned order refusing to recall the order of commission is not a "Judgment" within the meaning of clause 15 of the Letters Patent and hence not appealable. It further held that an application for review is not appealable under clause 15 of the Letters Patent and that no appeal is maintainable under clause 15 of the Letters Patent from an order passed under s. 151 of the Code of Civil Procedure.
Issues: 1. Whether the impugned order refusing to recall the order of commission is a "Judgment" within the meaning of clause 15 of the Letters Patent? 2. Whether an application for review is appealable under clause 15 of the Letters Patent? 3. Whether an appeal is maintainable under clause 15 of the Letters Patent from an order passed under s. 151 of the Code of Civil Procedure?
Ratio Decidendi: 1. The Court held that the impugned order is not a "Judgment" within the meaning of clause 15 of the Letters Patent as it does not involve determination of rights and liabilities, does not affect the merits of the question between the parties, and is not final. 2. The Court held that an application for review is not appealable under clause 15 of the Letters Patent as Or. 47 R. 7 CPC creates an express bar to the maintainability of an appeal against an order rejecting the Memorandum of Review and Or. 43 R. 1 CPC does not provide for an appeal against the order rejecting a review petition. 3. The Court held that no appeal is maintainable under clause 15 of the Letters Patent from an order passed under s. 151 of the Code of Civil Procedure as the Supreme Court and several High Courts have uniformly held that such an order is not appealable.
Final Decision: The Court held that the appeal is not maintainable and dismissed the same.
Mukul Gopal Mukherji, J.: This appeal has been sent back by the Hon'ble Supreme Court by its order dated 28.11.94 on the question of hearing of the objections of the respondents about the maintainability of the present appeal before the Division Bench against the impugned order of the Learned Single Judge rejecting the application for recalling the earlier order appointing the commission for taking down deposition of plaintiff's witness Mrs. Reba Bhowmick. The Hon'ble Supreme Court observed inter alia that since the question of maintainability of the appeal was yet to be ascertained by this Hon'ble Court, the Hon'ble Supreme Court, was of the view that this Court should consider the said question of maintainability and pending the hearing on the question of maintainability, the operation of the impugned order was stayed. The recording of the statement on deposition of Smt. Reba Bhowmick for commission was also stayed and liberty was given to mention the matter for hearing after the question of maintainability of the appeal was decided upon by this Hon'ble court.
2. It may be recalled that an application was made for examination of Mrs. Reba Bhowmick on commission on the ground of her illness as disclosed in the medical certificate dated 16.8.93. The prayer to examine her on commission was allowed by the Learned Single Judge's order dated 7.9.93. It is alleged by the appellants that subsequent thereto Mrs. Reba Bhowmick recovered from her illness and the self-same Doctor after another examination found her fit and issued a fitness certificate on 22.11.93. In view of the recovery from illness, it was contended by the appellants that the sole ground for issuance of the commission vanished and accordingly the appellants prayed for recall of the order of commission and alternatively there was a prayer for review of the earlier order dated 7.9.93. At the time of hearing, the appellants placed the application which now the appellants characterised as merely an application for recall and it was so decided by the Learned Single Judge that even though such an application was maintainable, the Learned Single Judge did not choose to interfere with the same. Relying upon the two cases reported in AIR 1930 Reng 315 (A.K.R.M.M.C. T. vs. MG BA CHIT) and AIR 1968 Del 226 (Narain Dass vs. Karan Chand), the Learned Single Judge accepted the submission to the effect that the Court could pass a different order from time to time as the situation might justly demand. The Court thus had jurisdiction to recall the order regarding issuance of a commission. However, the appellants lost on facts, the Learned Single Judge holding inter alia that application to recall should stand rejected.
3. To ascertain the truth, Appeal Court by order dated 3.10.94 appointed Medical Board consisting of eminent doctors to examine Mrs. Bhowmick and report, which direction she challenged by filing a special Leave application. The Supreme Court stayed the Medical Board as well as recording of her evidence on commission. The Supreme Court remanded the matter to this Court to decide about the maintainability of the appeal against the interlocutory order.
4. Mrs. Bhowmick challenged the maintainability on two grounds:-(i) The impugned order (refusing to recall the order of commission) is not "Judgment" within the meaning of the clause 15 of the Letters Patent and hence not appealable. (ii) Application made before the Trial Court was for review and no appeal lies against dismissal of the review petition. The Advocate General appearing for appellants contended that both the grounds are not sustainable in law and facts.
5. The appellants' submissions are to the effect that this is an internal appeal from Single Judge to Division Bench and governed by clause 15 of the Letters Patent. Clause 15 does not define the word 'Judgment' and what is a 'judgment' has been subject of controversy in the legal parlance for a considerably long time and such a controversy was settled by the
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