T.S. Thakur, J
1. This appeal under Section 10 of the Delhi High Court Act, 1981 is directed against an interlocutory order passed by a learned Single Judge of this Court in Civil Suit No. 1087/2005 whereby defendants No. 1 to 3 in the suit have been directed to remain present for recording their statements under Order 10 Rule 2 of the Code of Civil Procedure.
2. The plaintiff respondent in this appeal claims a copyright in a project called the 'Cold Chain Project' and the entire technology and know-how relating to the same. Alleging that defendant No. 1 in the suit who was earlier working with the plaintiff as its Managing Director had manipulated his position with a view to having the said project shelved, the plaintiff respondent sought a decree for permanent injunction against the defendants including defendant No.3 appellant herein restraining them from implementing the project or any variation thereof or divulging the details relating to the said project to Defendant No.2 or to any third party. An injunction restraining defendant No.1, the erstwhile Managing Director of the plaintiff company from taking up employment in relation to any project similar to the 'Cold Chain Project' was also prayed for.
3. By an order dated 9th August, 2005, the Single Judge trying the suit on the original side of this Court issued an ex-parte order of injunction in terms of Order 39 Rules 1 and 2 of the CPC restraining defendant No.1 from commencing, implementing or being involved in any project based on the know-how relating to the plaintiff company's 'Cold Chain Project' and divulging the details relating to the plaintiff company's project to any third party including defendants No. 2 and 3.
4. Defendant No.1 in the suit sought vacation of the above order in terms of an application filed by him under Order 39 Rule 4 of the CPC. So also defendants No. 1 to 3 sought production of certain documents in terms of Order 11 Rules 12 and 14 of the CPC. These applications came up for hearing before the Single Judge on 14th February, 2007 when he disposed of the applications for production of the documents and directed defendants No. 1 and 3 to the suit to remain present in the Court for recording their statements under Order 10 Rule 2 of the CPC, if so required. The relevant portion of the order dated 14th February, 2007 reads:
Present: Ms.Pratibha M.Singh and Mr.Bishwajit Dubey forthe plaintiff.
Mr.Pramod Gupta for defendant No.1.
Mr.Ankit Goyal for defendants Nos.2 and 3.
Last opportunity is granted to file original documents within four weeks. List before Joint Registrar for admission/denial of documents on 05.04.2007. List before Court for framing of issues on 14.05.2007. Defendants Nos.1 and 3 to remain present in Court for recording of Statement under Order 10 Rule 2 of the Code of Civil Procedure, 1908, if so required.
IA 6056/05 (Under Order 39 Rules 1 and 2 CPC) and IA 8626/05 (Under Order 39 Rule 4 CPC). At request of learned Counsels for the defendants, list on 14.05.2007 in the category of 'Short Cause Matters'. The parties to keep ready a short synopsis running not more than 3 pages for hearing of the interim application.
February 14, 2007 Sanjay Kishan Kaul, J.
5. The appellant's version is that since his pleader was duly authorized and competent to answer all questions in regard to the matters in controversy and also since no issues could have been framed on the next date of hearing, i.e. 14th May, 2007, the appellant was not present before the Court on the said date. The appellant's further case is that on 14th May, 2007 when the suit was called on for hearing, his pleader had submitted to the Court that he was authorized to answer all questions in regard to the matter in controversy and that the learned Single Judge could examine him in terms of Order 10 Rule 2 of the CPC. According to the appellant, the learned Single Judge ignored the submission made by the pleader and passed a short order which reads as under:
Present:Mr. Mohan Prasanan, ASG with Ms.Pratibha M.Singh,
Advocate for the plaintiff.
Mr.A.S.Chandhiok, Sr.Advocate with Ms.Sweta Kakkad,
Advocate for defendant No.1.
Mr.Rajiv Nayyar, Sr.Advocate with Mr.Pramod Gupta, Advocate for defendant Nos. 2 and 3.
+ CS(OS) No.1087 /2005
Defendant No.3 is not present in Court for recording of statement under Order 10 Rule 2 of the Code of Civil Procedure, 1908. No application for his exemption from personal appearance has been filed. The result is that the recording of statement of defendant No.1 is also to be deferred since this Court wanted to record statement of both defendants 1 and 3 on the same date. In case defendant No.3 wanted any personal exemption, an appropriate application ought to have been filed in advance and the plaintiff would not have engaged a senior counsel.
In view of the aforesaid, at the request of learned Counsel for defendant No.3, last opportunity is granted to the defendant No.3 to appear in Court on the next date of hearing for recording of statement and defendant No.3 shall bear the cost of today's adjournment quantified at Rs.25,000/-.
It is pointed out that some of the original documents have not been produced. Learned Counsel for the plaintiff states that plaintiff will produce the originals of the documents filed for admission/denial of documents. In case plaintiff wants to file any further original documents, the needful be done within three weeks. Defendants are also granted liberty to file original documents within the same period of time.
Defendant No.1 to remain present on the next date of hearing.
List before the Joint Registrar on 20th August, 2007.
List before the Court on 13th November, 2007.
6. Aggrieved the appellant has filed the present appeal assailing the correctness of the directions issued by the learned Single Judge primarily on the ground that the direction regarding personal appearance of the appellant was contrary to the provisions of Order 10 Rule 2 of the CPC.
7. We have heard at considerable length Mr. Rohtagi, counsel for the appellant and Mr. Mohan appearing for the plaintiff respondent No. 3. A preliminary objection to the maintainability of the present appeal was raised by Mr. Mohan who contended that the impugned order passed by the learned Single Judge was not appealable under the Code of Civil Procedure. He urged that the order was neither tantamount to a decree nor was the same appealable under Order 43 of the CPC. That being so, the present appeal was, according to Mr. Mohan, wholly misconceived and deserved to be dismissed on that ground alone.
8. On behalf of the appellant, it was on the contrary argued by Mr. Rohtagi that even when the impugned order was neither a decree under the provisions of the CPC nor was the same appealable under Order 43 of the said Code, an appeal could still be maintained against the same under Section 10 of the Delhi High Court Act read with Clause 10 of the Letters Patent as applicable to the High Court of Delhi. He argued that the order passed by the learned Single Judge was a matter of moment and if not complied with, would result in termination of proceedings. He referred to Order 10 Rule (4) to contend that if a direction issued by the Court under Order 10 Rule 2 was not complied with, the Court trying the suit could proceed to pronounce judgment thereby putting an end to the proceedings. The order was, therefore, a judgment within the meaning of Section 10 of the Delhi High Court Act hence appealable argued the learned Counsel.
9. We have given our careful consideration to the submissions made at the bar. It is common ground that the impugned order is neither a decree nor is the same appealable under Order 43 of the CPC. Even so, the order passed by a Single Bench in exercise of his original jurisdiction may be appealable before a Division Bench in case the same is a judgment within the meaning of Section 10 of the Delhi High Court Act and Clause 10 of the Letters Patent. The term "Judgment" has not however been defined either in the Delhi High Court Act or in the Letters Patent. There is all the same no manner of doubt that the term 'Judgment' as it appears in the two provisions, both dealing with the maintainability of appeals against orders passed by a Single Judge, would carry the same meaning. In the absence of any specific meaning assigned to the term 'Judgment' in either of the two provisions, what is a judgment under one must necessarily be a judgment under the other also.
10. Having said so, the question is whether the order passed by the learned Single Judge in the instant case tantamounts to a judgment so as to be appealable before a Division Bench. As to what would constitute a judgment for the maintainability of appeals under the Letters Patent is no longer res integra. The cleavage in judicial opinion on the meaning of the term 'Judgment' was noticed and resolved by the Supreme Court in Shah Babulal Khimji v. Jayaben . Before we refer to the tests prescribed by the apex Court in the said decision, we may notice a full bench decision of this Court in University of Delhi and Anr. v. Hafiz Mohd Said and Ors. . A Bench of five judges had in that case assigned a restricted meaning to the term 'Judgment' and opined that only such adjudications would amount to a judgment as would have the impact of a decree or an order mentioned in Section 104 read with Order 43 Rule 1 of the CPC. The Court had also declined to approve the view that the term 'Judgment' in Section 10(1) of the Delhi High Court had to be interpreted by reference to the tests laid down by different pronouncements while interpreting the said expression under the Letters Patent. The above view was followed in The Public Trustee v. Rajeshwar Tyagi and Ors. AIR 1972 Delhi 302.
11. The restricted interpretation placed upon the term 'Judgment' in Hafiz Mohd. case (supra) did not find favor with the Supreme Court in Jugal Kishore Paliwal v. S. Sat Jit Singh . That was a case where an amendment to the written statement was sought and allowed at the time of framing of issues. An appeal preferred against the said order was dismissed by a Division Bench of this Court holding that the same was not maintainable in view of the full bench decision in Hafiz Mohd. Case (supra). In a further appeal before the Supreme Court, their Lordships held that the decision in Hafiz Mohd.'s case was no longer good law in view of the decision of the Supreme Court in Shah Babu Lal Khimji's case. The following passage from the said decision is in this regard apposite:
Counsel for both the parties are present and we have heard them at length. The High Court was clearly wrong in refusing to go into the merits of the case on the ground that appeal was not maintainable in view of the full bench decision in University of Delhi v. Hafiz Mohd. Said. This decision is no longer good law in view of our decision in the case of Shah Babulal Khimji v. Jayaben D. Kania where we have laid down various parameters and conditions under which an appeal can lie from a single Judge to the division bench.
12. In the light of the above pronouncement, it is no longer possible to hold that since the order impugned in the present appeal was passed under the Code of Civil Procedure, the right to appeal against the same must also be available under the Code itself. The argument that in order to maintain an appeal against an interlocutory order, the same must either tantamount to a decree within the meaning of Section 2 of the CPC or be an appealable order under Order 43 Rule 1 read with Section 104 of the CPC must therefore be rejected. It follows that even when an interlocutory order may not tantamount to a decree or be appealable under Order 43 of the CPC, an appeal would be maintainable if the same tantamounts to a judgment within the meaning of Section 10(1) of the Delhi High Court Act and Clause 10 of the Letters Patent as applicable to this High Court.
13. What then is the true test to be applied for determining whether an order is a judgment within the meaning of the Lahore High Court Letters Patent as applicable to the High Court of Delhi and Section 10 of the Delhi High Court Act can be answered authoritatively only by reference to the decision of the apex Court in Shah Babulal Khimji's case (supra) The Court had in that case recognized three distinct kinds of judgments, namely:
(i) A final judgment which decides all the questions or issues in controversy so far as the Trial Judge is concerned and leaves nothing else to be decided;
(ii) A preliminary judgment where the Trial Court by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or where the Trial Judge passes an order after hearing a preliminary objection raised by the defendant relating to the maintainability of the suit such as bar of jurisdiction, res judicata etc.; and
(iii) An intermediatory or interlocutory judgment which include orders specified in Order 43 Rule 1 and even those which are not included in the said provision but which possesses the characteristics and trappings of finality in that the orders adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding.
14. Mr. Rohtagi did not place the order impugned in the present appeal in the first two categories of judgments mentioned above and recognized by the Supreme Court in Shah Babulal Khimji's case (supra). What he argued was that the impugned order was an intermediatory or interlocutory judgment and was therefore appealable even when it was not an order of the kind made appealable under Order 43 of the CPC. We find it difficult to accept that contention. While dealing with intermediatory or interlocutory judgments, the Supreme Court in Khimji's case cautioned:
There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment, the adverse effect on the party concerned must be direct and immediate rather than indirect or remote.
15. Their Lordships drew a distinction between an order refusing leave to the defendant to defend the suit which was held to be a judgment and an order granting leave which was held not appealable even when the same adversely affected the plaintiff. Prejudice to the plaintiff in the latter case was not direct or immediate. It was indirect and remote as the plaintiff continued to possess the right to show that the defense was false and succeed in the suit. The Court favored a cautious approach in the matter having regard to the fact that the Trial Judge is a senior court with vast experience of various branches of law occupying a very high status. The Court observed that the judge should be trusted in the matter of discretionary orders with due regard to the well settled principles of civil justice. Their Lordships held that any discretion exercised or routine orders passed by the trial court in the course of the suit that may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a 'judgment' otherwise the appellate court (Division Benches) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The following passage is in this regard instructive:
(1) That the trial judge being a senior judge with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory order with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (division bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The Courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.
16. The Court emphasized the importance of finality and the fact that the order decides the questions in controversy either in an ancillary proceeding or in the suit itself and observed:
That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.
17. There is no gainsaying that while the term 'Judgment' appearing in the Letters Patent and Section 10 of the Delhi High Court Act receive a wider and more liberal interpretation than the word 'Judgment' as used in the CPC, every order passed by a Trial Judge would not amount to a judgment. The essence of the legal exposition as emerging from Khimji's case is that there must be finality in the determination of some controversy arising in the suit and not merely an order which invokes the procedural provision as a step in aid of a final determination.
18. In Exports Unlimited v. Delhi State Industrial Development Corporation 1996 37 DRJ 109 a division bench of this Court dealt with an appeal arising out of an order under Order 19 Rule 2 of the CPC seeking cross-examination of the deponent of an affidavit filed in the course of proceedings under Section 20 of the Indian Arbitration Act, 1939. Another appeal disposed of by the same judgment was directed against an order allowing an application under Order 11 Rule 1 and 4 of the CPC seeking leave to deliver interrogatories on behalf of the plaintiff for examination of the defendant. After a review of the case law on the subject, Lahoti, J, as His Lordship then was, summed up for the Court the legal position as under:
Though the word 'judgment' as used in Section 10(1) of Delhi High Court Act cannot be equated with a 'judgment' amounting to a decree nor can it be confined to include only such orders as are made appealable under Section 104 read with Order 43 Rule 1 of the CPC, yet, at the same time, every interlocutory order cannot be regarded as a 'judgment'. An order, though interlocutory, may amount to a judgment if it decides a stage in a suit or proceeding or affects vital and valuable rights of the parties and works serious injustice to the party affected. Orders deciding procedural matters or orders which do not affect the rights of the parties cannot be treated as judgments; grievance on that score is always capable of being corrected by the appellate Court in appeal against the final judgment. An order allowing or refusing leave to deliver interrogatories is merely a procedural step in a suit. It does not affect, much less vitally affect, the rights of the parties.
19. The Court held that no appeal was maintainable against an order passed under Order 11 Rule 11 of the CPC as grant or refusal of permission to deliver interrogatories did not amount to adjudicating any right or obligation of parties in controversy. The Court also held that refusing the leave to cross-examine the deponent on an affidavit filed in the course of the proceedings under Section 20 of the Arbitration Act also did not determine any valuable right of any parties inasmuch as in an appeal preferred against the final order, the party who has been deprived of such an opportunity shall have the right to raise an appropriate contention before the appellate court. Both the appeals were in that view dismissed.
20. Applying the principles stated in Khimji's case and those stated in the decision in Export Unlimited case (supra), we have no manner of doubt that the order passed by the learned Single Judge in the instant case directing the appellant to remain present for his cross-examination under Order 10 Rule 2 of the CPC does not determine any right leave alone any valuable right nor does the same determine the controversy in the suit or any part thereof so as to constitute a judgment appealable under Section 10 of the Delhi High Court Act or Clause 10 of the Letters Patent applicable to this Court. The grievance of the appellant in substance is that instead of the appellant being asked to appear in person, his counsel could be asked to answer the questions on his behalf. It is true that in certain cases, the appearance of the party may become unnecessary as the counsel engaged by him may be able to answer any question relating to the controversy on which the Court may seek any elucidation. But the ability of the counsel to answer all such questions is not a matter of legal presumption. The Court trying the suit is entitled to decide for itself whether it would like the party to appear in person having regard to the nature of the controversy and the aspects on which it may seek any elucidation. Inasmuch as the Court decides to examine the party instead of the counsel appearing for it any such decision or a direction for appearance of the party does not determine any issue in controversy. It is in substance a step in aid of identifying the real area of controversy between the parties for a quick and effective adjudication of the same. Far from causing any prejudice, any such attempt by the court aimed at cutting short the controversy by identifying the real issues in dispute and removing the embellishments which are more often than not introduced by prolific pleadings on either side should be welcomed by the parties. While we do not consider it necessary to go into the merits of the controversy or the reason why the learned Single Judge was justified in seeking any elucidation from the parties concerned, we are of the view that examination of the parties is a matter that is per se intended not so much for determining any right or obligation in the suit or resolving or adjudicating upon a controversy as it is for identifying the precise area of controversy so that the same can be effectively adjudicated upon. The distinction between any order which adjudicates upon a controversy or a part thereof and another which simply attempts to identify the real area in controversy cannot be lose sight of. Inasmuch as the impugned order directed the defendants to remain present for recording their statements under Order 10 Rule 2, it was an attempt to identify the real issues in controversy and to elucidate matters which, in the opinion of the learned Single Judge, required to be elucidated. Such an order would not, therefore, amount to a judgment so as to be appealable under Section 10 of the Delhi High Court Act or Clause 10 of the Letters Patent.
21. In the result, this appeal fails and is hereby dismissed as not maintainable. Parties are left to bear their own costs.