M/S Kushal Infraproject Industries (India) Ltd v. Umed Singh (Deceased) ThrLrs & Ors

1. The present appeal,HasZ,beenj.'filed by the appellant challenging the order dated Adigusfi)8, 2018 whereby the learned Single Judge has closed the right ofthe appellant herein to file list ofwitnesses as-well as the evidence by way ofaffidavits.

2. The facts are, the appellant herein has filed a suit for specific performance based on an Agreementto Sell executed with the respondents on January 23,2013.The respondents filed written statement to the suit filed by the appellant on November 01,2013. On March 03, 2015, the defendant No.l expired. On March 04, FAO(OS)132/2010[8] ^ 2018:DHC:8720-DB 2015 the issues were framed. On March 21, 2015, counsel for the respondents informed the counsel for the plaintiff regarding the death of the defendant No.l and also infonned regarding the particulars and addresses ofthe legal heirs ofthe defendant No.l in the suit. On April 30, 2015, an application has been filed by the appellant under Order 22 Rule 4 CPC to implead the legal heirs of the defendant No.1. It is the case ofthe appellantthat between May 20,2015 and July 24,2017,the matter was listed for service upon the legal heirs ofthe deceased,defendant No.l and finally they were impleaded in place of deceased defendant No.l on November 24,

2013. The learned Joint Registrar had closed the right of the appellant to lead evidence. When the niatter was listed before the ieamed Single Judge,a prayer for,extehsip^ timeto file the list of witnesses as well as evidence by v/ay ofaffidavits was made before the learned Single.Judge^ which was declinedV;

3. Mr. Parvinder Chauhan, learned counsel appearing for the respondents has taken a preliminary objection on the maintainability of the appeal inasmuch as under Section 10(1) of the Delhi High Court Act, 1966 read v/ith Section 104 and Order 43 Rule 1 CPC, the impugned order being not a judgment and is not an appealable FAO(OS)132/20.108 Poge2of[8] order, the appeal is not maintainable. He would rely upon the judgment ofthe fivejudges ofthis Courtin the case ofUniversity of Delhi andAnr. v. HafizMohd,Said and Others FAQ(OS)6/1968 decided onMarch 02,1972and HariSingh v. KharaitiLai& Sons 1995(32)DRJ309.

4. Mr. Kirti Uppal, learned Senior Counsel for the appellant submit, there was no occasion for the plaintiff to file list of witnesses and the evidence by way of affidavits between May 20, 2015 and November 24, 2017, as the-application under Order 22 Rule 4 CPC >vas under consideration of the Court. He stated that such period could not have been taken/into consideration to close the right ofthe appellantto file list ofwitnesses and the evidence by way ofaffidavits. He also stated,-theimp^ order is as good as the final judgment as the appellant shall not be in a position to establish its claim in the-suit befdfe tRe learned Single Judge in the absence oflist ofwitnesses and affidavits.

5. We agree with the submission made by Mr.Chauhan on the maintainability ofthe appeal in view ofthejudgments referred to by him, whose reference is made above. In this regard, we reproduce FAO(OS)132/2010[8] Page3ofS para 44 ofthejudgment in the case of University ofDelhiandAnr. (supra),as under

^ In other words apartfrom the orders which have the force of a decree, appeals will, therefore, lie only against those orders passid by the singlejudge which are mentioned in Section 104 read with Order 43 Ride I of the Code and no appealfvill lie against other orders which are outside these t\vo provisions. As the impugned order ofthe learned singlejudge is not one of those orders specified 104 read with Order 43 Ride 1 qfithe'CodefiidiSame cannot be held (, to be ajudgmentwithin the meaningofSection 10(1)of the Act and hence no appeal is competent under this Section." v; j' 6.. Similarly, in Hari Singh (supra), in which case also an appeal has been filed under Clause 10 ofthe Letters Patent by the defendant in the suit against order dated September 03, 1993 whereby further opportunity was declined to the appellant to cross examine PW 2 and further the time granted to him to lead his FAO(OS)132/2010[8] 4of[8] evidence was restricted to three days as against ten days time requested by him. One of the issues, which fell for consideration was whether the appeal under Clause 10 of the Letters Patent or Section 10 ofthe Delhi High Court Act lies. The Coordinate Bench. has,in paras4to 7,held as under:- "4. Thefirst question for consideration is whether on thefacts stated the appeal under Clause 10 ofthe Letters Patent or Section 10 ofthe Delhi High Court Act lies. The Letters Patent by Clause 10 confers a rightofappealagainsta "judgment".So does the Delhi High Court Act. Whatfindofadprder will constitute a judgment will dependon thefacts andcircumstances of each case and on the nqturdand circumstances ofthe order passed The'jtffnfifddgment" has not been defined in ClaiisefOq^hef^ Patent. As to what order would constitute ajudgment within the meaning ofthesaid clause has been a subjectofcontroversy, till a matterfrom Bombay caine befdre Supreme Court in Shah BabulalKhimji Vs. Jayaben D. Kania & Another, wherein Clause 15 of the Letters Patent (Bombay) was involved.

5. As noticed in Shah Babulal Khimji's case, a judgment can be of three kinds, viz., (1) a final judgment: (2) a preliminary judgment, and (3) intermediary or interlocutory judgment. A judgment FAO(OS)132/2010[8] ■ Page5off; which decides all the questions or issues in controversy sofar as the learned Single Judge is concerned and leaves nothing else to he decided is afinaljudgment, i.e., when the suitfor action brought by the plaintiffis dismissed or decreed in part or infull. A preliminary judgmentis normally based on apreliminary objection regarding the maintainability of the suit, consequent where to the suit is either dismissed or the objection over-ruled. Such an order decides an important aspect ofthe trial which affects a vital right ofone ofthe parties and amounts to djudgment appealable to a larger Bench. However, every interlocutory order cannot he regarded,as a;judgment. Such of the interlocutory orders, which contain the quality of finality but are not covered iinAer Order 43 Rule 1 Civil Procedure Cod&4y.p^ within the meaning oj Clause fO fi fy i^ Patent are appealable. Such an order can be ajudgment, ifthe adverse effect on the party concerned is direct and. immediate rather than mddrect/brrdmote arid it works serious irijiistice to theparty concerned.

6. In the instant case, the impugned orders are made during the course ofrecording ofevidence and relate to the admissibilily or relevancy ofevidence and the conduct oftheproceedings. These are ofancilliqry nature and do not have the attribute of finality.In Shqh Babulal Khimji's case, it was held that the order ofa FAO(OS)132/2010[8] Page6ofS learned Single Judge relating to the "relevancy" or. "admissibility" of a question or document is not a judgment for the purpose of Letters Patent. The Supreme Courtheld as under: "THUS, in other words every interlocutory order cannot he regarded as a judgment hut only those orders would he judgments which decide matters 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 documentalso cannotbe treated asjudgments because the grievance on this score'can' fe corrected by the appellate courtin appearagqinstthefinaljudgment."

7. From the abpvqiqudted\passa it is evident that the orders pn theJpUesdonr cf relevancy or admissibility ofqUestidpsfqnqdd-by the Single Judge, do not amount to judgment, conferring a right of appealin Clause IQ ofthe Letters Pdtent."

7. In view of consistent pronouncements by the five judges Bench ofthis Court and a Coordinate Bench ofthis Court, we are of the view that the order under challenge do not amount to a "judgment" conferring a right to appeal under Section 10 of the Delhi High Court Act, 1966. Further,the order impugned is not an FAO(OS)132/2010[8] Page 7oft u appealable order under Section 104 read with Order 43 Rule 1 ofthe CPC. The appeal is not maintainable and is dismissed. CM No.35104/2018(for stay) Dismissed as infructuous.

V.KAMESWAR RAO,J CHIEF JUSTICE