Important Point – Letters Patent Appeal is not maintainable against an order for transfer of suit.

K.S. JHAVERI, J.

1. By way of filing these appeals under Clause 15 of the Letters Patent, the appellants – original respondents of Misc. Civil Applications No.1174 and 1175 of 2013 have challenged the order passed by the learned Single Judge whereby the learned Single Judge has allowed the transfer petitions while in other appeal, the learned Single Judge has rejected the transfer application.

2. Mr. Vivek Bhamare, learned advocate appearing for Mr. Y.N. Ravani, learned advocate for the respondent has raised a preliminary objection about the maintainability of the writ petition in view of the decision of the Supreme Court in the case of Asrumati Debi, Appellant v. Kumar Rupendra Deb Raikot and others, Respondents, AIR 1953 SC 198 wherein in paragraphs 12, 13 and 15 it is observed as under:

“12. As stated already, it is not our purpose in the present case to frame an exhaustive definition of the word' judgment' as used in Cl. 15 of the Letters Patent. We have indicated what the essential features of a 'judgment' are according to both the Calcutta and the Madras High Courts and all that we need say is, that in our opinion, an order under Cl. 13 of the Letters Patent does not satisfy the tests of a 'judgment' as formulated by either of these High Courts.

13. The question that requires determination in an application under Cl. 13 of the Letters Patent is, whether a particular suit should be removed from any Court which is subject to the superintendence of the High Court an tried and determined by the latter as a Court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the 'Court. In the present case, a Single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a judgment. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the Court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another Court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under Cl. 13 of the Letters Patent, is, in the first place, not at all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court, the proceedings in the latter, to be taken only from the stage at which they were left in the Court in which the suit was originally filed.

15. Leave granted under Cl. 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such order would be a judgment. If, on the other hand, an order is made dismissing, the Judge's summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed off vide 29 Bom. 249 (P), that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so far as the court making the order is concerned. This brings the order within the category of a 'judgment' as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of this view. It is enough for our pur