P L D 1969 Karachi 418 (PLP)

(a) Letters Patent (Lahore), Cl. 10‑Word `judgment"

Connotation of word "judgment" in relation to Letters Patent Appeal‑Question whether or not an order falls within meaning of `judgment" in cl. 10‑Depends upon facts and circumstances of each case‑Criteria to be kept in view in considering facts and circumstances‑Order of Court closing evidence of a party

Held, "Judgment" as contemplated by Cl. 10, Letters Patent (Lahore). The decision of the question whether or not an order falls within the connotation of a judgment for the purpose of letters patent appeal, depends upon the facts and circumstances of each case. In considering the facts and circumstances, the following criteria, which have been deduced from the case‑law and which, by no means, provide an exhaustive list, can be kept in view: (i) A decision may be a judgment, if it affects the merits of the question between the parties, by determining some right or liability, which can, of course, be preliminary or interlocutory. The difference being only that the final judgment determines the whole cause while the preliminary or interlocutory judgment, determines only a part of it. (ii) No form of adjudication is essen tial for qualifying a decision to be a judgment; but its effect in, the suit or proceedings in which it is made, is to be seen. (iii) The nature of the application or proceeding in which the: decision is given is immaterial for the purpose of determining. whether or not the decision is a judgment; and so also the fact whether or not the decision will technically put an end to the proceeding in so far as the Court giving the decision is concerned. (iv) The word "judgment" in clause 10 of the Letters Patent is not synonymous with decree, therefore, it also contemplates an. order other than that passed as a judgment in a decree; and that such a judgment is not qualified by any adjective, such as "final". (v) A decision may be a judgment in a miscellaneous proceeding which, if it remained, would conclude entirely any right of a party thereto. (vi) A judgment, as contemplated by clause 10 of the Letters Patent, merely means "a judicial determination or a decision of a Court" in an ordinary sense and other qualifications need not be read into it. (vii) Whether or not an adjudication, at any stage, is expressed as a judgment or an order, will not make any difference in so far as the connotation of the judgment for the purpose of letters patent appeal is concerned. (viii) If the judgment or order determines the right to any relief claimed by any party to the proceeding and does not merely regulate a procedure and is not merely a technical step towards obtaining final adjudication, it will be a judgment under clause 10 of Letters Patent. (ix) To see whether or not a decision is a judgment, it will have to be found from the facts of the case as to whether or not, practically speaking, the suit remains alive after the decision contained in the judgment. If for all practical purposes the case of a party stands decided by an order on a miscel laneous appl.cation and only technical formalities for concluding the case remain to be observed, the decision would be a judgment under clause 10 of the Letters Patent. (x) Order XLIII, rule 1, C. P. C. which makes provision for appeals against orders may be utilised as one of the aids to find out as to whether an order, mentioned therein as appealable, is also a "judgment". For this proposition, the support, by means of negative inference, can be had from the provisions of rule 3 of Order XLIX, C. P. C. It gives the list of rules which do not apply to the High Court in relation to its ordinary or extra ordinary original civil jurisdiction. The rules contained in Order XLIII, C. P. C. are not included in that list. This would, by implication, mean that ordinarily an order which is appealable under Order XLIII, C. P. C. may also be appealable in Letters Patent as a judgment. But it is, by no means, the only guide in all cases; because unless an order is also qualified to be the "judgment", it will not be appealable under the Letters Patent. Thus it is not correct to say that the orders not mentioned as appealable under Order XLIII, C. P. C. are not at all judgments or vice versa that all orders mentioned therein are, always to be treated as judgments. This conclu sion has been influenced by the view consistently main tained by all the Courts that the word "judgment" in Letters Patent is not synonymous with the word "order". (xi) If diametrically opposed results follow from a narrow or a wide connotation of the word "judgment", the question of maintainability of letters patent appeal should be decided by ain following the latter connotation. Where, therefore, an order of Court closing evidence of plaintiff was assailed in Letters Patent appeal and the respondent raised the objection that the order was not a "judgment" and, therefore, appeal under clause 10 of the Letters Patent (Lahore) was not competent Held, the right to produce evidence is a substantial and very valuable right of a party. The orders under appeal finally took away that right of the appellants. In the circumstances of this case and in the light of the criteria enumerated above, the order passed by the Judge on 3rd March 1966, and so also the dismissal of application, dated 14th March 1966,. are adjudications in the nature of `judgment' as contemplated by clause 10 of Letters Patent; and, therefore, this appeal is competent. Mst. Allah Rakhi v. Mst. Raj Bibi and others P L D 1957 Lah. 70; Hafiz Fazal Hussain and another v. P. Farnandez L. P. A. No. 128 of 1967; Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another P L D 1966 S C 276; Hurrish Chunder Chowdhry v. Kali Sundari Debi.z 10 1 A 4; Firm Shaw Hari Dial & Sons v. Messrs Sohna Mal Beli Ram A I R 1942 Lah. 95; Warton's Law Lexicon; Uttar Pradesh v. Villay Anand A I R 1963 S C 946; Dr. Sadiq AU v. Anwar Ali and others A I R 1923 All. 44; Nanak Chand and others v. Sajjad Hussain and others A I R 1924 Lah. 412; Secretary of State v. Nansey Lakhamesey and others A I R 1930 Bom. 262; Fida Hussain v. Messrs Queensland Insurance Co. Ltd. and another P L D 1959 Kar. 216; Mathura Sundarf Dassi v. Haran Chundra Shaha and others A I R 1916 Cal. 361 and Muralidhar Charnot is v. M. R. Dalmia A I R 1919 Cal. 97 ref. (b) Civil Procedure Code (V of 1908), O. XVII, r. 3‑Order under r. 3 penal in nature‑Conditions to be satisfied before passing such order. Order XVII, rule 3, C. P. C. is, in its nature, a penal provi sion. That provision can be pressed into service for deciding the suit finally on merits, on the proof of default by some party. Some of the conditions to be satisfied before passing an order under that provision are: (a) that the provision being penal, it should be construed very strictly. (b) The facts of the case should not, at all, admit for any doubt as to default of the party. (c) The conduct of the party, proved to have committed the default, must not be excusable. (d) No other party, witness or the Court itself should be, in any way, responsible wholly or partly for the default, e.g. if the plaintiff has done all that is necessary for the summoning of the witness and on the failure of the office to issue summons or after service due to negligence of the witness himself, he fails to appear before the Court, it cannot be treated as default of the party summoning the witness. (e) The time granted for the performance of any act mentioned in this rule must be a time granted to the party itself on its request and not to a witness, to the other party or by the Court due to its own exigencies relating to Court work or proceedings in that particular case. (f) The act for the performance of which the time may have been granted, must be specified act necessary to further the progress of the suit. (g) There should be some material to decide the suit. If the conditions of this rule are satisfied, then only the Court can proceed to decide the suit; but that decision, if it is to be under this rule, must be forthwith. Where, therefore, the Court adjourned the case for argument after closing all the doors for production of evidence or examination of the parties, it was held that the order not being a final decision "forthwith" of the suit could not properly fall under rule 3, O. XVII of C. P. C. Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies P L D 1964 S C 97 ref. JUDGMENT MUHAMMAD AFZAL ZULLAH, J.‑--The necessary and material facts leading up to this letters patent appeal are as : The appellants‑plaintiffs who claim to be carrying on business of stocking and selling drugs and medicines at Karachi, filed a suit, on the original side in the High Court, against the defendant- company said to be carrying on pharmaceutical business; on 10th of September 1963, for the recovery of Rs. 1,31,013'98 seeking the same on the basis of an alleged contract by the defendant‑respondent, of supply of their manufactured products to the appellants for sale. The written statement by the respondent‑company was filed on 9th of March 1964. The parties filed the consent issues on 3rd April 1965, which are as follows:‑ (1) Is the suit barred by section 69 of the Partnership Act? (2) Was the Agreement of Distributorship referred to in para. 3 of the plaint executed between the plaintiffs' firm as at present constituted and the defendant‑company? If not, have the plaintiffs any locus standi to file this suit? (3) Was the defendant‑company entitled to terminate the Agreement of Distributorship without giving three months' advance notice and was the said agreement rightly terminated by the defendant‑Company (4) Have the plaintiffs any cause of action for the suit? (5) Was the defendant‑company entitled to forfeit the security deposit of Rs. 5,000? (6) Did the plaintiffs' firm as at present constituted come into existence after notice of termination of the Agreement of Distributorship was served on the old firm? If so, is the suit on behalf of the plaintiffs maintainable? (6‑A) Whether additional discount of 8-1/3% is included in 33-1/3% discount? (7) Can the plaintiff No. 2 sue in his own name on a cause of action which is alleged to have arisen in favour of the firm of which he is‑alleged to be the partner? (8) What amount, if any, is due to the plaintiff from the defendant‑company? (9) To what relief, if any, are the plaintiffs entitled against the defendant‑company?

2. After some proceedings, which are not necessary to be stated for purpose of this appeal, when the matter became ripe for recording evidence, the appellants filed an application (Miscel laneous No. 737 of 1965) on 24th May 1965, under Order XXVI, rule 4(1), C. P. C., requesting the Court for the examination of some witnesses on commission. On 29th May 1965, the appellants filed in the Court various documents with a list thereof covering about 27 pages. Those documents were not exhibited and were consigned to `Record Keeper', vide office note, dated 19th June 1965. The defendant also filed various documents in Court on 4th June 1965, along with a list covering about three pages. These documents were consigned to `Record Keeper' on 25th October 1965.

3. The above‑mentioned application (Miscellaneous No. 737 of 1965) came up for hearing before our learned brother A. S. Farooqi, J. (as he then was) who passed the following order on 1st November 1965:‑ "He may in the first instance call upon the defendant to make discovery on interrogatories as to the extent of supplies made by them and to the medical stores for the relevant period." It appears that in pursuance of this order, the appellants submitted an application (Miscellaneous No. 129 of 1966) under Order XI, rule 1, C. P. C. on 15th January 1966, along with the interroga tories. Our learned brother Mr. Justice Feroze Nana Ghulamally passed the following order on this application on 7th February 1966 "The defendants carry on business in Karachi and their attendance shall be available to this Court for the purpose of recording evidence. No summons is necessary." The Additional Registrar, vide his note, dated 19th February 1966, fixed the hearing of the case for 3rd March 1966. On 3rd March 1966, the matter came up before learned Single Judge of this Court but the learned Judge did not pass any order in writing on the order sheet. However, there is a note against 3rd March 1966, in the diary kept by the office which is as follows:‑ "Called‑Mr. Kirmani and Mr. S. H. Siddiqi Advocates for the parties are only present while plaintiff and defendant are absent. No evidence adduced by any of the parties. Court rejected their request for adjournment. For arguments‑15‑3‑66. (Sd.) ZAIDI. 3‑3‑1966."

4. The appellants' version about the proceedings on 3rd March 1966, is that the matter was called and the counsel for both the parties made a joint request which had already been reduced in form of application, for adjournment of the matter, as the parties were talking of compromise. The Court rejected the oral request for adjournment and the application was returned by the Peshkar to the parties and was not taken on record and the matter was fixed for argument on 15th March 1966. The parties were not present on the hearing of 3rd March 1965. The written application referred to above which appears to have been signed by the learned counsel for both the parties is an annex to an application (Miscellaneous No. 437 of 1966) under section 151 read with Order XVII, rule 2, C. P. C., filed by the appellants on 14th March 1966. The circumstances as to why the plaintiff was absent and why evidence was not produced on 3rd March 1966, were explained in this application and a prayer was made that the plaintiff be allowed to adduce evidence on his behalf before hearing the arguments in the matter. As already stated, the matter was fixed for arguments in the case for 15th March 1966. Before that date, however, the appellants filed the above‑mentioned application. On 15th March 1966, Kadir Nawaz Awan, J. after hearing the learned counsel, rejected with costs the application of the appellants seeking opportunity to produce evidence. The learned Judge was pleased to observe that when the application was called up for hearing, Mr. Khalid Ishaque, the learned counsel for the plaintiffs, was absent Mr. Kirmani, who had till then conducted the case of the appellants, refused to argue the case and thereupon the respondent's Advocate, i.e. Mr. Siddiqui, started his arguments. After the arguments, Mr. Khalid Ishaque appeared who requested to reopen the application, whereupon he was heard by the learned Judge. It appears that the learned counsel contended that the appellants were being penalised for the fault of their counsel and cited some case‑law on the question; but the learned Judge did not agree with him. The learned counsel also appears to have contended that the absence of the appellant on 3rd March 1966, was unavoidable because he received the intimation of the date only on that very morning and, therefore, leas unable to reach Karachi from Sukkur to attend the Court. This contention was repelled by the learned Judge, by reference to the order, dated 7th February 1966, with a remark that thereafter the case was adjourned to 3rd March 1966. Here I may point out that the learned Single Judge was under an impres sion that the case was adjourned by the Court on 7th February 1966, for 3rd March 1966, and as if it was in the presence of the parties. But I find that the presence of the parties is not noted 'for that day in the order sheet by the learned Judge who passed the order. Moreover, the next date, i.e. 3rd March 1966, it appears from the diary, was fixed by the Additional Registrar subsequently and not by the Court on 7th February 1966. Another circumstance which was noted by the learned Single Judge was that if the plaintiff was unable to reach Karachi on 3rd March 1966, and was unaware of this date till he received the letter from his counsel, dated 1st March 1966, on the morning of 3rd March 1966, he could 'sot have signed the application jointly made by the parties for adjournment. The' said application, as noted above, is on the file in the form of an annex to the application, dated 14th March 1968. I have perused that application. It is signed by the counsel of the parties only and not by the parties themselves. Therefore in this behalf also the observation of the learned Single Judge with greatest respect appears to be under some misapprehension. After observing that a party cannot choose to remain absent without any ‑reasonable cause and then to appear at a later stage and request for permission to lead evidence, the learned Single Judge, as mentioned above, dismissed the application of the appellants on 15th March 1966. Aggrieved by that order, they have filed this? letters patent appeal.

5. Mr. Khalid Ishaq, the learned counsel for the appellants, contended that sufficient cause had been shown for permitting the appellants to produce the evidence before the arguments and, therefore, the application filed on 14th March 1966, in this behalf should have been allowed. Mr. A. A. Fazil, the learned counsel for the respondent, contended that the orders under appeal are not judgments; therefore this letters patent appeal is not competent. On merits, he contended that it was within the discretion of the learned Single Judge to grant or refuse permission to the appellants to lead evidence; and that being so there is no justification for interference. Both the learned counsel cited case‑law.

6. The learned counsel for the respondent, in support of his preliminary objection as to the competency of this appeal, cited Mst. Allah Rakhi v. Mst. Raj Bibi and others (1) and an unreported case Hafiz Fazal Hussain and another v. P. Fernandez in L. P. A. No. 128 of 1967 decided by Karachi Bench of this Court on 13th September 1967. He also informed us that Petition for Special Leave to Appeal No. K‑152 of 1967 against the above decision was dismissed by the Supreme Court on 3rd September 1968. In Mst. Allah Rakhi v. Mst. Raj Bibi and others the learned Judge examined the question whether or not the order closing the evidence of the plaintiff was a decree, an order or a judgment as contemplated by Order XLVII, C. P. C., so as to attract the provisions contained therein relating to the power to review. It was held that such an order was not a judgment as visualised in Order XLVII, C. P. C., so as to make the technicalities of that order applicable to a review of such an. order. It was further held that the Court had always the inherent power to review such an order, even though the provisions as to review contained in the Civil Procedure Code were not applicable. In the alternative however, support to this view was also taken from a Lahore amendment to Order XVIII, rule 2, C. P. C., by which two explanations were added which indirectly provided for the review of such an order. The reliance of the learned counsel on this case, it appears, was for purpose of showing that an order closing the evidence of a party, if not judgment as contemplated by Order XLVII, C. P. C., could not he considered to be a judgment under clause 10 of the Letters Patent. Such an assumption cannot be made from the reasoning adopted by the learned Judge in that case. On the contrary, the Judgment as contemplated by Letters Patent or English law, was compared with the judgment as contemplated by Order XLVII. It was observed that the judgment contemplated by Order XLVII is not, as defined in section 2(6) of C. P. C., as "the grounds of a decree or order" but it meant as "we say that the Court has, `pronounced Judgment' or the Court has `given judgment'." The question as to the exact meaning of the word "judgment" was no doubt considered but its connotation in Letters Patent was left open thus:‑ "It should be remembered that the word "Judgment is not used in the Civil P. C. invariably in the sense of grounds for a decree or an order. For instance, in section 13 it is not so used, as was held in a number of cases, vide Brijlal Ramjidas and, another v. Govindram Gordhands Seksaria and others A I R 1943 Bom. 201. and (1) P L D 1957 Lah. 70, Baijnath Karnani v. Yallabhdas Damani. A I R 1932 Mad.

661. Similarly, we find the words "pronounce Judgment" occurring in Order VIII, rule 10, Order X, rule 4 and Order XX, rule 1, and the words "give Judg ment" in Order XII, rule

6. In all these provisions the word "Judgment" has the same meaning as it has in the English Law or in the Letters Patent. The question as to the exact connotation of "Judgment" in English law or in the Letters Patent is by no means easy to decide but that question need not be decided in the present case." The other reason why this decision does not help the learned counsel is that the case before the High Court was in the revisional jurisdiction under section 115, C. P. C. On merits, the learned Judge, in fact examined the correctness of the order of the learned Civil Judge closing the evidence of the plaintiff and remanded the case. This shows that the case qualified, in the mind of the learned Judge, for the conditions laid down in section 115, C. P. C. and one of the conditions in that provision is that the case under revision should have been decided by the subordinate Court. Unless the order closing the evidence of the plaintiff could be treated as "case decided'', the order in revisional jurisdiction could not be passed by the High Court, considering that aspect of the matter, it will have to be presumed that the learned Judge treated such an order as a "case decided". Therefore, this case does not support the preliminary objection of the learned counsel for the respondent. The unreported case cited, above arose out of an order passed by a learned Single Judge of this Court, whereby the evidence of the defendants was closed by the learned Judge trying a suit on this original side. The case was already proceeding. The evidence of one party was recorded and reasons were given for closing the evidence of the other party. The defendants filed a letters patent appeal (No. 128 of 1967). No doubt this appeal was dismissed in limine by a Division Bench of this Court with a short order giving the reasons:‑ (1) that "the learned Judge exercised his discretion and refused to grant time to the defendants to produce their evidence"; and (ii) that "the defendants if aggrieved with the final judgment of the learned Single Judge, may press into service grounds of this appeal as grounds in the appeal against that Judgment". It appears that the question whether or not the letters patent appeal was at all competent against the order passed in that case by the learned Single Judge, was not considered. Moreover, it also appears that the learned Judges were not disposed to interfere with the order passed in that case in exercise to discretion of the learned Single Judge. The special leave to appeal to the Supreme Court was refused. Their Lordships of the Supreme Court, in a short order, observed that in their opinion "for good and sufficient reasons the learned Single Judge refused to accede to the prayer of the defendants and, as such, a Letters Patent Bench was justified in declining to interfere with his order". It is apparent that their Lordships found the reasons given by the learned Single Judge as unexceptionable, and for that reason the refusal by the Letters Patent Bench to interfere was also held to be justified. It cannot, therefore, be deduced from the order of the Supreme Court that their Lordships held that in such a case letters patent appeal will not be competent. Therefore, in this view of the analysis of the order of the learned Letters Patent Bench of the High Court and that of their Lordships of the Supreme Court, I consider that the unreported case cited by the learned counsel for the respondent does not support his contention.

6. The authoritative and recent pronouncement on the subject is that of the Supreme Court in Mumtaz Khan v. Chief Settlement and Rehabilitation Commissioner and another (P L D 1966 S C 276) cited by the learned counsel for the appellants. The case before their Lordships arose out of an order passed by a learned Single Judge of this Court, in his jurisdiction under Article 98 of the Constitution, in a settlement case. The order was set aside, in appeal, by a Letters Patent Bench. The party aggrieved by the decision by the Letters Patent Bench contended before the Supreme Court that the "order" passed by a High Court in writ jurisdiction could not be described as a "Judgment" within the meaning of clause 10 of the Letters Patent, the letters patent appeal was incompetent. Their Lordships were pleased to review the important cases, by then, decided by our Courts, by the Courts in India before Partition, by the Privy Council and by the Courts of India after Partition. The discussion of the subject on pages 281 to 283 of the report leads to an irresistible conclusion that their Lordships of the Supreme Court did not agree with any restricted definition of the word "Judgment" given by some Courts. Their Lordships particularly referred to and approved two decisions, one by the Privy Council and another by a Full Bench of the Lahore High Court namely, Hurish Chunder Chowdhry v. Kali Sundari Debia (10 I A 4) and Firm Shaw Hari Dial & Sons v. Messrs Sohna Mal Bali Ram (A I R 1942 Lah. 95). In the former case, their Lordships of the Privy Council had characterised a decision in a miscellaneous proceeding, which if it remained, would conclude entirely any right of a party thereto, as a "Judgment" within clause 15 of the Letters Patent of the High Court of Calcutta which corresponds with clause 10 of the letters patent of the Lahore (now West Pakistan) High Court. In the latter case, their Lordships of the Full Bench were pleased to hold that the word "Judgment" was not synonymous with "decree" and observed that clause 10 of the Letters Patent also contemplated orders other than judgments in a decree. The learned Judges further observed that the expression used in clause 29 of the Letters Patent was "final judgment" while only the word "judgment" was used in clause

10. Thus the judgment in clause 10 being without any adjective was considered to be different from the final judgment mentioned in clause

29. After considering the case‑law on the point, their Lordships of the Supreme Court were of the view‑ " . It seems fairly clear that this term should not be confined to decrees but is of wider import. In the general connotation of the term, a "judgment" would merely mean a "judicial determination or a decision of a Court" and it could be interlocutory or final." After referring, in this connection to the explanations given in Warton's Law Lexicon under the heading "judgment", their Lord ships were further of the view that an order which finally decided the rights of the parties was, in every sense of the term, a "judgment". It is of advantage to mention here that on the question of connotation of word "judgment" relating to the Letters Patent appellate jurisdiction, the contrary view held by some of the post‑Partition Indian Courts and a Full Bench decision of Rangoon High Court in 1941 has not been approved by our Supreme Court. That view has been held to be too narrow. Mr. Fazil, the learned counsel for the respondent, while replying to the arguments of Mr. Khalid Ishaq as to the competency of this letters patent appeal, frankly conceded that the Indian view on the question in issue before us is too narrow and has also conceded that that view for that reason has not been approved by our Supreme Court in the case of Mumtaz Khan. In connec tion with the post‑Partition view of the Indian Courts, both the learned counsel cited some cases, including the latest one on the subject, namely, State of Uttar Pradesh v. Vijay Anand (A I R 1963 S C 946). But in view of the decision in Mumtaz Khan's case, wherein their Lordships of our Supreme Court have referred to the above cited Indian Supreme Court case, I do not think it necessary to deal with those cases from Indian Jurisdiction.

7. Mr. Khalid Ishaq also relied on some other cases, In Dr. Sadiq Ali v. Anwar Ali and others (A I R 1923 All. 44), it was held that in order to find out whether or not an order was a judgment for the purpose of letters patent appeal, the test is not as to what is the form of the adjudication but to see as to what is its effect. If its effect, whatever the form may be or whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding in so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, the adjudication is a judgment. In Nanak Chand and others v. Sajjad Hussain and others (A I R 1924 Lah. 412), it was held that an order passed by a Single Judge refusing to set aside dismissal of an appeal was a judgment, qualifying for an appeal under clause 10 of the Letters Patent. In both the above cases, however, it was observed on merits that the question whether or not the order passed by a Single Judge in exercise of his discretion was to be interfered with, in letters patent jurisdiction, was dependent upon the circumstances of each case. 1n Secretary of State v. Nansay Lakhamsey and others (A I R 1930 Bom. 262), it was held that a finding on an issue, which does not merely regulate the procedure in the suit but goes further so as to decide some question affecting the rights between the parties, amounts to a judgment from which a letters patent appeal is competent. In this case, the plaintiffs contended that the weight inserted in a railway receipt amounted to (1) an estoppel and (2) an admission of the weight. The learned trial Judge (on the original side of the High Court) held that there was no estoppel but that the weight in the railway receipt was binding on the railway company as an admission on their part of the weight as they accepted it prima facie for the purpose of charging freight at the station of consignment. It was argued before the High Court that this was such an admission as would throw the burden of proof on the railway company and in absence of the railway company calling any evidence, a decision will go against them on the admission found against them, of the weight as inserted in the railway receipt. Relying therefore, on the above decision of the learned trial Judge as a `judgment', the aggrieved party fileda letters patent appeal to which an objection was raised that the decision did not amount to a judgment. After reviewing some case‑law on the point, it was held, on the basis of the observations summarised above, that the decision was a judgment and the letters patent appeal was competent. No specific importance was given to the question that the decision was on a preliminary issue; because in the opinion of their Lordships, a decision may either be final or preliminary, and if it is preliminary it may affect a part of the suit. In that case, it was further held that the decision practi cally amounted to a judgment in favour by the plaintiffs as it was obviously impossible for the railway company after that to adduce evidence of what was the actual weight of the commodity at the station of the consignment. In Fida Hussain v. Messrs Queensland Insurance Co. Ltd. and another (P L D 1959 Kar. 216). It was held that the word "judgment" in clause 10 of the Letters Patent does not mean a final judgment. It was further observed that the question whether or not an order amounted to a judgment within clause 10 should be considered. On the facts and circumstances of each case. His Lordship the Chief Justice, while writing the judgment for the Division Bench, at page 219 of the report, observed as follows:‑ "One of the criterions can be whether the Court has decided any material issue between the parties finally affecting the subject‑matter of the suit. In cases where the order is passed on an independent proceeding ancillary to the suit an appeal will lie if it renders the judgment effective when obtained between the parties." Reliance was also placed on the Full Bench case in Firm Shah Hari Diyal & Sons, Madras v. Messrs Sohna Mal Beti Ram to hold that each case "must be con sidered on its own facts and circumstances" to hold whether or not an order amounts to a judgment for the purpose of letters patent appeal.

8. Both the learned counsel stated at bar that they have not been able to find out any other case pari materia with the present case dealing with the question whether or not an order closing the evidence of the plaintiff in toto was a judgment for the purpose of letters patent appeal. This, of course, is subject to the contention of (Mr. Fazil that Mst. Allah Rakhi v. Mst. Raj Bibi and others and the unreported case Hafiz Fazal Hussain and another v. P. Fernandez decided by this Court, referred to in the earlier part of this judgment, do provide some assistance, to which contention I have not been able to agree. I have kept in view the peculiar circumstances of the present case and of those two cases which have already been analysed by me. Mr. Fazil, however, cited two more cases i.e. Mathura Sundri Dassi v. Haran Chandra Shalta and others (1) and Murlldhar Chamaria v. M. R. Dalmia (A I R 1919 Cal. 97). While citing these cases, he frankly stated that the first one goes against him while the second one supports him. 1n the former cases, it was held that an order refusing to restore a suit dismissed for default by a Judge on original side is appealable, being a judgment within the meaning of clause 15 of the Letters Patent. One of the reasons was that such an order, if passed by any other Civil Court, would be appealable under Order XLIII, rule 1, C. P. C. In the latter case, refusal by a Single Judge to grant leave to the defendant to file a written statement after the expiry of the time, within which the written statement was directed to be filed, was held to be not a judgment within the meaning of clause 15 of the Letters Patent. The main reason for decision in that case was that the Civil Procedure Code did not provide for an appeal under Order XLIII, rule 1, C. P. C. if such an order would have been passed by a subordinate Court. The line of reasoning in the above‑mentioned two Calcutta cases appears to be based on the sale consideration whether or not an order, if passed by a subordinate Court, would have been appealable under the provisions of the Civil Procedure Code. This line of reasoning has been disapproved in Firm Shaw Hari Dial & Sons v. Messrs Sohna Mal Beli Ram, the Full Bench case, and has not specifically approved, in the case of Mumtaz Khan decided by our Supreme Court, referred to above.

9. In the light of the above discussion and the analysis of various rulings cited at bar, I have come to the conclusion that the decision of the question whether or not an order falls within the connotation of a judgment for the purpose of letters patent appeal, depends upon the facts and circumstances of each case. In considering the facts and circumstances, the following criteria, which have been deduced from the case‑law which by no means provide an exhaustive list, can be in view:‑ (i) A decision may be a judgment, if it affects the merits of the question between the parties, by determining some right or liability, which can, of course, be preliminary[ or interlocutory. The difference being only that the final judgment determines the whole cause while the preliminary and interlocutory judgment determines only a part of it. (ii) No form of adjudication is essential for qualifying a decision to be a judgment; but its effect in the suit or proceed ings in which it is made, is to be seen. (iii) The nature of the application or proceeding in which the decision is given is immaterial for the purpose of determining whether or not the decision is a judgment; and so also the fact whether or not the decision will technically put an end to the proceeding in so far as the Court giving the decision is concerned. (iv) The word "judgment" in clause 10 of the Letters Patent is not synonymous with decree, therefore it also contemplates an order other than that passed as a judgment in a decree; and that such a judgment is not qualified by any adjective, such as "final'. (v) A decision may be a judgment in a miscellaneous pro ceeding which, if it remained, would conclude entirely any right of a party thereto. (vi) A judgment, as contemplated by clause 10 of the: Letters Patent, merely means "a judicial determination or a. decision of a Court"; in an Ordinary sense and other qualifications need not be read into it. (vii) whether or not an adjudication, at any stage, is expressed as a judgment or an order, will not make any difference in so far as the connotation of the judgment for the purpose of letters patent appeal is concerned. (viii) If the judgment or order determines the right to any relief claimed by any party to the proceeding and does not merely regulate a procedure and is not merely a technical step towards obtaining final adjudication, it will be a judgment under clause 10 of Letters Patent. (ix) To see whether or not a decision is a judgment, it will: have to be found from the facts of the case as to whether or not, practically speaking, the suit remains alive after the `decision' contained in the judgment. If all for practical purposes, the case of a party stands decided by an order on a miscellaneous application and only technical formalities for concluding the case remain to be observed, the decision would be a judg ment under clause 10 of the Letters Patent. (x) Order XLIII, rule 1 C. P. C. which makes provision for appeals against orders may be utilised as one of the aids to find out as to whether an order, mentioned therein as appeal able, is also a "judgment". For this proposition, the support by means of negative inference, can be had from the provisions of rule 3 of Order XLIX, C. P. C. It gives the list of rules which do not apply to the High Court in relation to its ordinary or extraordinary original civil jurisdiction. The rules con tained in Order XLIII, C. P. C. are not included in that list. This would, by implication, mean that ordinarily an order which is appealable under Order XLIII, C. P. C. may also be appealable in Letters Patent as a judgment. But it is, by no means, the only guide in all cases; because unless an order is also qualified to be the "judgment", it will not be appealable under the Letters Patent. Thus it is not correct to say that the orders not mentioned as appealable under Order XLIII, C. P. C. are not at all judgments or vice versa that all orders mentioned therein are, always to be treated as, judgments. In reaching this con clusion my opinion has been influenced by the view con sistently maintained by all the Courts that the word "judg ment" in Letters Patent is not synonymous with the word "order". (xi), If diametrically opposed results follow from a narrow or a wide connotation of the word "judgment", the question of maintainability of letters patent appeal should be decided by following the latter connotation."

10. In this case, all the issues could not be decided without recording evidence. Innumerable documents had been filed which were to be proved and exhibited. After the examination of the defendant, the witnesses whose names had already been submitted may have been examined. The right to produce evi dence is a substantial and very valuable right of a party. The orders under appeal finally took away that right of the appellants. In the circumstances of this case and in the light of the criteria enumerated above, I have come to the conclusion that the order passed by the learned Judge on 3rd March 1966, and so also the dismissal of application, dated 14th March 1966, are adjudications in the nature of `judgment' as contemplated by clause 10 of Letters Patent; and, therefore, this appeal is competent.

11. It is an admitted fact that by an order, dated 1st November 1965, on an application for summoning evidence, (for examination of plaintiffs' witnesses on commission) a learned Single Judge was pleased to order, "in the first instance", the discovery on interrogatories from the defendant. This order was under Order XI, rule 1, C. P. C. The appellants complied with this order but by another order, dated 7th February 1966, the effect of the above order was nullified because it was ordered that the attendance of the defendant being available to the Court at Karachi for recording evidence, it was not necessary to issue summons. This order can be treated as one under rule 2 of Order X, C. P. C. which provides for oral examination of a party which is present in Court. This is so, because the order was passed so as to avoid the discovery on interrogatories which would have involved prolongation of the case. On 19th February 1966, the Additional Registrar fixed the case for 3rd of March 1966. In view of the order passed on 7th February 1966, i t can be legitimately presumed that on 3rd March 1966, the defendant was to be examined under Order X, rule 2, C. P. C. In any case, even if it was not for an examination under Order X, rule 2, C. P. C. it was for the purpose of recording the statement of the defendant only. This is so, because the order, dated 7th February 1966, cannot be read without reference to the order, dated 1st Novem ber 1965, wherein it was specifically stated that in the first instance, the defendant was to make statement as to the extent of supplies to Medical Stores. The procedure for making discovery on interrogatories was substituted by the procedure of examination of the defendant in Court. But the condition, of this being done in the first instance, must be presumed to have been retained. On 3rd March 1966, it appears that the learned counsel for the parties were under the impression that the case was fixed for the evidence of the plaintiffs but, as it appears from the analysis of the two earlier orders, in fact the case was fixed for the examination of the defendant. Admittedly, the plaintiff, as well as the defendant were absent on 3rd March 1966. In the ordinary course, the Court should have proceeded under rule 4 of Order X, C. P. C. and 3 should have postponed the hearing of the suit to a future date and should have directed the appearance of the defendant in person. Under sub‑rule (2) of rule 4 of Order X, C. P. C., the Court could have, on proof of failure of the defendant to appear on that day (3rd March 1966), without lawful excuse, pronounced judgment against him or it could have made such other order in relation to the suit as it thought fit. It is clear that the order which was passed on 3rd March t 966 (as is evidenced from the order sheet maintained by the office, though there is no order in writing by the learned Judge) was not passed under either of the sub‑rules of rule 4 of Order X, C. P. C. The learned Judge appears to have been under a misapprehension 'that on that day the plaintiff was to produce him witnesses. It may be correct that the learned Judge could be misled in making that assumption, due to the application jointly made by the parties for adjournment. In that application, it was requested that "before recording the evidence the parties be given sufficient time to finally determine their position". But that was, by no means, sufficient for the learned Judge to have ignored the two earlier orders referred to above. Thus the default in appearance of the defendant was a material circumstance to be noted on 3rd March 1966, and not the default of the plaintiff. It may be mentioned that the learned counsel for the parties were present on 3rd March 1966; and if the defendant would have appeared and would have offered to make statement in pursuance of the order passed on 7th February 1966, the case could have proceeded. On the contrary, the learned Judge without any justification, passed an order of refusal to adjourn the case, closing the evidence of the plaintiff and, of course, of the defendant also.

12. The next question that arises is whether this order could be passed under rule 3 of Order XVII, C. P. C. The answer, in my view, is in the negative. Order XVII, rule 3, C. P. C. is, in its nature, a penal provision. That provision can be pressed into service for deciding the suit finally on merits, on the proof of default by some party. Some of the conditions C to be satisfied before passing an order under that provision are:‑ (a) that the provision being penal, it should be construed very strictly. (b) The facts of the case should not, at all, admit for any doubt as to default of the party. (c) The conduct of the party, proved to have committed the default, must not be excusable. (d) No other party, witness or the Court itself should be, in any way, responsible wholly or partly for the default; e.g., if the plaintiff has done all that is necessary for the summoning of the witness and on the failure of the office to issue summons or after service due to negligence of the witness himself, he fails to appear before the Court, it cannot be treated as default of the party summoning the witness. (e) The time granted for the performance of any ac mentioned in this rule must be a time granted to the party itself on its request and not to a witness, to the other party or by the Court due to its own exigencies relating to Court work or proceedings in that particular case. (f) The act for the performance of which the time may have been granted, must be a specified act necessary to further the progress of the suit. (g) There should be some material to decide the suit. If the conditions of this rule are satisfied, then only the Court can proceed to decide the suit; but that decision, if it is to be under this rule, must be forthwith. Admittedly, the appellant was not given the time for the performance of any act on his part. As mentioned above, the defendant was to appear on 3rd March 1966, and to have made his statement. The failure of the defendant to appear on that day cannot be attributed to the plaintiff; simply because if the defendant had appeared and would have made a statement that would hive been treated as evidence of the plaintiff. In my view, the conditions of rule 3 of Order XVII, C. P. C. have not been satisfied in this case. Moreover, the order passed on 3rd March 1966, or its reiteration by the other order under appeal on 15th March 1966, was not in the nature of the determination of the suit forthwith. The learned Judge adjourned the case for arguments after closing all the doors for production of evidence or examination of their parties. This, in my view, not being a final decision forthwith of the suit could not properly fall under rule 3 of Order XVII, C. P. C. I have also examined the provisions of Order XV, C. P. C. which deal with the disposal of suit at the first hearing. The proceedings before the learned Judge were not on the first hearing but on adjourned hearing. Issues had already been framed and the parties intended to produce evidence. They had already submitted the documents which were yet to be proved and exhibited. Therefore, the matter would not fall under rules 1, 2 and 3 of Order XV, C. P. C., rule 4 thereof is also not applicable because it was not a case of the failure of any party without sufficient cause to produce the evidence on which it relied; because the reliance of the plaintiff was not on the statement of the defendant, alone. He was yet to produce his evidence, but after the examination of the defendant in pursuance of the order passed by the Court on 7th February 1966. Therefore: the order passed by the learned Judge would not fall under this rule either. The provisions of Order XV, C. p. C. are thus, not attracted.

13. The only provisions, which could possibly be applied are rules 1 and 2 of Order XVII, C. P. C. The order passed on 3rd March 1966, is not covered by Order XVII, rule 1, C. P. C.; because it was not only a case of refusal to adjourn the proceedings but also a case of closing the evidence of the parties; and, to be precise, refusal to abide by the order of 7th February 1966, and thus refusal to examine the defendant in the first instance, which amounted to review thereof. Strictly speaking the order, dated 3rd March 1966, would not fall under rule 2 of order XVII, C. P. C., because the learned Judge did not conclude the matter for the default in appearance of the parties. If he had acted on that assumption, he could dismiss the suit either under Order IX, rule 3, C. P. C. for the non‑appearance of both the parties, or under Order IX, rule 8, C. P. C., for the non‑appearance of the plaintiff only. But no such order was passed. The Court could make any other order, as it thought fit, under rule 2 of Order XVII, C. P. C. but that order, in my view, cannot be an order in the nature of a penalty. There is: ample authority of Case‑law on the point that rule 2 of Order XVII, C. P. C. can not be availed for deciding any substantial question on merits by invoking the considerations mentioned in rule 3 thereof. What the learned Judge did in this, case was that he proceeded to decide the suit but failed to fulfil the condition of immediacy laid down by rule 3 of Order XVII, C. P. C., when it used the word "forthwith". Thus it appears that the order that the learned Judge passed purports to have been passed under rule 3 of Order XVII, C. P. C. But in law it cannot be held to have been passed under that rule; because, as discussed above, there was no justification for proceeding thereunder. In reaching this conclusion. I have been influenced by the fact that the evidence of the plaintiff has been shut out as a penal consequence of his assumed failure to produce his, evidence and only the formality of hearing the arguments was to be performed by the learned Judge to decide the suit. Therefore, in view of the above discussion, I am of the firm view that the suit, in the circumstances of this case, could not be decided under rule 3 of Order XVII, C. P. C., nor could any other order be passed under that rule, as done in this case, to achieve the purpose contained in that rule. If a final order would have been passed under rule 3 of Order XVII, C. P. C., deciding the suit forthwith, that order, would have been set aside as not being according to law. In para. 10 of this judgment, I have already indicated the practical result of the order of the learned Judge. In closing the plaintiffs' case, i.e. shutting out his evidence, without which it was very difficult for him to succeed, the learned Judge has conclusively decided a valuable right of the appellants in the conduct of the suit. Therefore, this order being determinative finally of plaintiff's right, to produce evidence, but without the support of law; merits to be set aside.

14. Before concluding this judgment, it is necessary to notice the argument of the learned counsel for the respondent in respect of exercise of discretion by the learned Judge. He dismissed the application, dated the 14th of March 1966, of the appellants made under Order XVII, rule 2, C. P. C., seeking permission to adduce evidence, by means of the order under appeal, dated 15th March 1966. This application could also be filed under Order XVIII, rule 2, C. P. C. By an amendment made in rule 2 of Order XVIII, C. P. C., Explanations I and II were added which provide for the recognition of the inherent jurisdiction of the Court, of its own accord or on the application of any party, or reasons to be recorded in writing, to direct any party to examine any witness at any stage. The witness mentioned therein shall also include "any party". It was held in Mst. Allah Rakhi v. Mst. Raj bibi and others, cited by the learned counsel for the respondent in another connection, that the said amendment did not enact any new law giving any additional power to the Court in respect of the subject dealt therein. As I have indicated above, the amendment was only a recognition of an inherent power of the Court which already existed. May be, it was only by way of abundant caution that the two Explanations were added to rule 2 of Order XVIII, C. P. C. The learned Judge, in my view, had sufficient power under this rule to allow the plaintiff to adduce his evidence, in spite of the earlier order passed on 3rd March 1966, which closed his evidence. In .the ruling cited above, refusal to pass such an order, even if within discretion of the Court, was interfered in the revisional jurisdiction of the High Court. An improper exercise of discretion, particularly in failing to set aside an improper and illegal order, cannot be held to be immune from interference by appellate authority. In somewhat similar circumstances, their Lordships of the Supreme Court discussed the question of interference with an order passed by a Court in exercise of its discretion. The case is Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (P L D 1964 S C 97). The relevant observations at page 102 of the report are as follows:‑ "The learned Single Judge failed however to exercise his jurisdiction on account of the view which he took and which we have found to be mistaken that the appellants were bound to appear on the 22nd April 1960. We would therefore ourselves exercise the jurisdiction which he should have exercised and would set aside the order of 22nd April 1960, and the decree based upon it. It is true that the learned Single Judge had a discretion to set aside or not to set aside the order of 22nd April 1960, but the discretion is judicial and subject to the appellate powers of this Court and in this case the failure to exercise jurisdiction was due to a mistaken view of. law At the same time it should be stated that if there be jurisdiction in a Court to act the jurisdiction should be exercised if the failure to exercise it will lead to injustice and there is no principle of public policy which forbids its exercise in the particular circumstances." These observations fully apply to the circumstances of this case. The failure of the learned Single Judge to set aside his order, dated 3rd March 1966, on application made in that behalf on 14th March 1966, and his failure to allow the plaintiff to adduce evidence is, in my view, failure to exercise the jurisdiction which has led to injustice. There is another aspect of the matter. The learned Judge while disposing of the application, dated 14th March 1966, assumed certain facts which, as explained in paragraph 4 of this judgment, were either non‑existent or could not lead to the inferences drawn by the learned Judge. Even if it were a question of exercise of discretion, the learned Judge proceeded, it is stated with greatest respect, on wrong assumptions and irrelevant considerations. Therefore, his order merits to be set aside.

15. In view of the above discussion, I accept this appeal. There being no justification in law or facts for the order, dated 3rd March 1966, the same is set aside. Similarly, the order dated 15th March 1966, refusing to allow the plaintiff to adduce evidence not being legal and proper, is also set aside. The appellants' application, dated 14th March 1966, is allowed as prayed. Both the orders having been set aside, the result is that the suit will now be heard from the stage at which it was, immediately before 3rd March 1966. There shall be no order as to costs. NOORUL ARFIN, J.‑

I agree. K. B. A. Appeal accepted.