DELHI HIGH COURT
                     Begum Aftab
                           Vs.

                S. Lal Chand. (Delhi)
            R.F.A. (O.S.) No.10 of 1968.
(I. D.Dua, C. J.S. K. Kapur and S. N. Andley, J.)

                       31.5.1968

                      JUDGEMENT

Inder Dev Dua, C. J.

1.The question which this Full Bench is called upon to decide relates to the amount of
court-fee payable on appeal presented by an aggrieved party under section 10 of the
Delhi High Court Act (hereafter called the Act) against the judgment of a learned
Single Judge of this High Court given in the exercise of ordinary original civil
jurisdiction conferred by the Act, to a Division Court thereof. Section 10 may now be
read:

       "10. Powers of Judge: (1) Where a Single Judge of the High Court of Delhi
       exercises ordinary Original civil jurisdiction conferred by sub-section (2) of
       section 5 on that Court, an appeal shall lie from the judgment of the single
       Judge to a Division Court of that High Court. (2) Subject to the provisions of
       sub-section (1) the law in force immediately before the appointed day relating to
       the powers of the Chief Justice, single Judges and Division Courts of the High
       Court of Punjab and with respect to all matters ancillary to the exercise of those
       powers shall, with the necessary modifications, apply in relation to the High
       Court of Delhi."
The distinctive features of this provision are that it provides for an appeal from a
judgment and not from a decree and the appeal lies from the judgment of a Single
Judge to a Division Court of the same High Court. It is worth noting that the judgment
of a Single Judge, as also that of the Division Court on appeal, acting within their
respective jurisdictions, are both considered to be judgments of the High Court. The
controversy, we may point out, centers round a very narrow point. It is agreed, and is
common case of the parties, that if court-fee is not payable in accordance with Article
11, Schedule II of the Court Fees Act, then it would indisputably fall within the
purview of Article 1 of Schedule I, which provides for payment of ad valorem court-
fee computed on the amount or value of the subject matter in dispute on appeal. We
are therefore, only confined to the scope and effect of these two Articles. These
articles, so far as relevant, may now be read:

= COURT-FEES ACT, SCHEDULE I.  Proper Fee
= Ad valorem fees.

Number

1. Plaint written statement pleading a set off
or counter-claim or memorandum of appeal "When the amount or
(not otherwise provided for in the Act or of value of the subject-
cross-objection presented to any civil or matter in dispute does
Revenue Court except those mentioned in not exceed
column 3.

***                            ***

It is not necessary to reproduce the remaining contents of columns

2 and 3 because it is only the contents of column 1 which require construction.

= SCHEDULE II

11. Memorandum of (a) to any civil Court Other than a

appeal when the appeal High Court, or to any Revenue

is not from a decree or Court or Executive Officer other

an order having the than the High Court or Chief

force of a decree, and is Controlling Revenue or Executive

presented -    Authority;

               (b) To a High Court or Chief

               Commissioner, or other Chief

               Controlling Executive or Revenue

               Authority."

In this case also, it is not necessary to reproduce the contents of column 3. Suffice it to
say that the court-fee is a fixed amount. The short argument on behalf of the appellant
is that the present appeal is not from a decree or from an order having the force of a
decree and, therefore, it falls within Article 11 of Schedule II and not within Article 1,
Schedule I, which, for our purpose, is a residuary Article. It is added that reading these
two Articles together it must follow that Article 1, Schedule I, so far as appeals are
concerned, is confined only to appeals from decrees and orders having the force of
decrees. The cogency of this argument depends on the meaning of the word
"judgment" used in section 10 of the Act. No decision directly covering the
construction of this section has been brought to our notice, but by way of analogy,
reference has been made to the decisions construing the meaning of the word
'Judgment' occurring in clause 10 of the Letters Patent of the High Court of Judicature
at Lahore and in clause 15 of the Letters Patent constituting the High Courts of
Judicature at Calcutta and Bombay. Reference has also been made to the definitions of
the words "judgment" and "decree" contained in section 2 (9) and (2) respectively of
the Civil P. C. We shall have to see, among other things, as to how far these
definitions are helpful in construing the word "judgment" as used in section 10 of the
Act.
2. Turning first to the definitions as contained in the Code, it may be pointed out that
those definitions, as the opening part of section 2 suggests, are confined to the Code
itself and are in addition subject to repugnancy. Now, according to the scheme of the
Code, as is discernible from Part VII, it is only decrees and certain orders which are
made appealable and the word "judgment", as defined in section 2 (9), merely means
the statement given by the Judge of the grounds of a decree or order. The scheme of
section 10 of the Act is clearly different and quite obviously, the definitions of the
Code cannot have any direct bearing on the problem we are required to solve.

3. Let us now turn our attention to clause 10 of the Letters Patent of the Lahore High
Court. It reads as under:

       "10. And we do further ordain that an appeal shall lie to the said High Court of
       Judicature at Lahore from the judgment (not being a judgment passed in the
       exercise of appellate jurisdiction in respect of a decree or order made in the
       exercise of appellate jurisdiction by a Court subject to the superintendence of
       the said High Court, and not being an order made in the exercise of revisional
       jurisdiction and not being a sentence or order passed or made in exercise of the
       power of superintendence under the provisions of Section 107 of the
       Government of India Act, or in the exercise of criminal jurisdiction) of one
       Judge of the said High Court or one Judge of any Division Court, pursuant to
       section i08 of the Government of India Act, and that notwithstanding anything
       hereinbefore provided an appeal shall lie to the said High Court from a
       judgment of one Judge of the said High Court or one Judge of any Division
       Court, pursuant to Section 108 of the Government of India Act, made on or after
       the first day of February, one thousand nine hundred and twenty-nine in the
       exercise of appellate jurisdiction in respect of a decree or order made in the
       exercise of appellate jurisdiction by a Court subject to the superintendence of
       the said High Court where the Judge who passed the judgment declares that the
       case is a fit one for appeal; but that the right of appeal from other judgments of
       Judges of the said High Court or of such Division Court shall be to us, Our
       Heirs or Successors in Our or Their Privy Council, as hereinafter provided."
Clause 15 of the Calcutta, Bombay and Madras High Courts is identical, and being
substantially to the same effect, need not be reproduced. The word "judgment" in this
clause has been construed somewhat liberally and it is not synonymous with a decree,
final or preliminary, in a suit.

Shri Parkash Narain, the learned counsel for the Union of India, has however, drawn
our attention to a decision of the Privy Council in Sevak Jeranchod Bhogilal v. The
Dakore Temple Committee,1 in which the term "judgment" in the Letters Patent has
been construed to mean, in civil cases, a decree and not a judgment in the ordinary
sense. The language used in the decision of the Privy Council is somewhat general,
though the Judicial Committee was apparently concerned only with clause 39 of the
Letters Patent of the Bombay High Court. Following this decision, a Division Bench
of the Patna High Court in Gobind Lal v. Administrator-General of Bihar, 2 observed
that if one of the parties comes and asks the Judge of the High Court to recall his
earlier order under his power of review or under his inherent power, and the Judge
merely refuses to take any steps in the matter, then such an order is not a judgment
within the meaning of clause 10 of the Letters Patent.

An earlier Bench decision of the same High Court also seems to have taken a similar
view in Banwari Lal v. Shukrullah,3 The Privy Council decision seems also to have
been followed by the Rangoon High Court in Dayabhai Jiwandass v. Murugappa
Chettyar, 4 and by the Nagpur High Court in Bhiwara v. Mt. Renuka, 5 As noticed
earlier, the Privy Council was concerned with clause 39 and not clause 15 of the
Bombay High Court. The phraseology of clause 39, it is not disputed, is materially
different from clause 15, and indeed this distinction has been noticed by a Bench of
the Lahore High Court in Shibba Mal v. Rup Narain, 6 where it is observed as under. -

       "Now, the learned Counsel on both sides are unable to explain why their
       Lordships of the Privy Council, after holding that no appeal was competent, not
       only heard the appeal but accepted it. Mr. Kishan Dayal placed his reliance
       upon the solitary sentence in the judgment of the Privy Council, which says that
       the term 'judgment' in the Letters Patent of the High Court means in Civil cases
       'a decree and not a judgment in the ordinary sense,' and urges that no appeal lies
       under Clause 10 from an adjudication unless it amounts to a 'decree' as defined
       by section 2, Civil P. C. This contention runs counter to the view of all the High
       Courts in India, which have never placed such a narrow construction upon the
       term 'judgment'.
It must be remembered that their Lordships of the Privy Council were dealing with
Clause 39, Letters Patent of the Bombay High Court, which provides for an appeal to
the Privy Council from a 'final judgment, decree or order', and that the clause which
gives the right of appeal from a single Judge to a Division Bench makes no mention of
the word "final.' The Privy Council apparently intended to point out that the word
'judgment' as used in Clause 39 is not to be taken in the sense in which that expression
is used in the Civil Procedure Code; where a distinction is drawn between a judgment
and a decree.

The observations relied upon by Mr. Kishan Dayal may not be free from ambiguity;
but there can be no doubt that the expression 'judgment' as used in Clause 10, Letters
Patent cannot be held to be synonymous with the word 'decree' and that there is no
warrant for curtailing the scope of that clause in the manner suggested by him. Indeed,
it has been expressly decided by a Division Bench of this Court in the Firm Badri Das
Janki Das v. Mathanmal, 7 that an order rejecting an application for staying further
proceedings in pursuance of a preliminary decree amounts to a 'judgment'. In view of
this authority, which is admitted to be on all fours with the present case, the
preliminary objection must be overruled." The Lahore High Court was of course
concerned with clause 10 of its own Letters Patent which is similar to clause 15 of the
Letters Patent of the Bombay High Court.

4. Without dealing at length with some other decisions which have distinguished the
Privy Council decision, we feel that we have to construe the word "judgment" in
section 10 of the Act in its own context and in the background of its own statutory
scheme and that the ratio of the Privy Council decision merely goes to suggest that the
word "judgment" as used in the Letters Patent may not be restricted to the literal
definition of the expression "judgment" as contained in the Civil P. C. The Letters
Patent, when providing for appeals from judgments, in our view, contemplate
judgments which have both the effect of a decree as defined in the Code and of such
order as may affect the merits of a controversy between the parties by determining
some disputed right or liability. A judgment may thus be either final or preliminary or
interlocutory. In order to decide whether an adjudication should be treated as a
"judgment" within the meaning of clause 10 of the Letters Patent, we feel that regard
should be had not to the form of the adjudication but to its effect upon the suit or the
civil proceeding in which it is made. If its effect, whatever its form and whatever the
nature of the proceeding in which it is made, is to put an end to the suit or proceeding,
or if its effect, if not complied with, is to put an end to the suit or proceeding, the
adjudication is indisputably a "judgment" within the meaning of this clause. Other
decisions or determinations adjudicating upon a disputed controversy on the merits in
a suit or proceeding may also appropriately fall within the contemplation of the word
"judgment". It is not possible to lay down any definite rule which would meet the
requirements of all cases and all that we may say is that in determining whether an
order or decision constitutes a "judgment" or not, the Court has to take into
consideration the nature of the order and its effect upon the suit or the civil proceeding
in which it is made. Each case would thus depend on its own peculiar facts and
circumstances.

5. We have arrived at this conclusion on the plain reading of section 10 of the Act in
the background of the statutory scheme. In our view, the draftsman could neither have
intended to restrict the right of appeal only to final judgments disposing of the entire
suit, nor could he have intended it to extend to all orders made during the course of
trial, however ministerial or procedural in their nature or ineffectual on the rights of
the parties.

6. For the purpose of court-fee also therefore, the Court will have to consider in each
case whether the judgment falls within the contemplation of Article 11, Schedule II,
because of its not amounting to a decree in the sense of finally disposing of a suit or
an order having the force of a decree or whether it is a judgment which, without so
amounting, otherwise materially affects the rights of the parties so as to give rise to a
right of appeal under Section 10 of the Act. It may be observed that in the case in
hand, the competency of the appeal is not in question, and indeed it is common ground
that the judgment is appealable. The only question which arises for our consideration
is whether "the present is an appeal from a decree or from an order having the force of
a decree or whether it is an appeal from a judgment which is neither a decree nor an
order having the force of a decree. It is also contended at the bar that the Court-fees
Act, being a fiscal statute, unless it clearly falls within Article 1, Schedule I, which
provides for ad valorem court-fee, this Court must give benefit of doubt to the citizen
and hold that a fixed court-fee is payable in this case under Article 11, Schedule II.
This argument seems to us to be somewhat misconceived. If the judgment does not
fall within the plain meaning of Article 11, Schedule II, then appeal, which is
admittedly competent, would be governed by Article 1, Schedule I.

7. In the present case, the judgment has indisputably disposed of the suit finally, with
the result that nothing more remains to be done in the trial of the suit. Whether a
decree is also to be framed in agreement with the judgment under the Civil P. C. is, in
our opinion, immaterial because the Act does not take notice of decrees and in terms it
provides for appeals only from judgments. The judgment under appeal, however,
conclusively determines the rights of the parties with regard to the matters in
controversy in the suit and it embodies in itself the formal expression of the
adjudication. Merely because as a result of the adjudication, it purports also to grant a
decree, would not deprive the judgment of the characteristics of a decree for the
purposes of Court Fees Act. This judgment must, therefore, be held to amount to a
decree and, therefore, excluded from the operation of Article 11, Schedule II. The Act,
it may be remembered, does not define either "judgment" or "decree". It merely makes
the judgment appealable under Section 10. To be appealable, as hereinbefore
discussed, the judgment, broadly stated, must be more than a mere statement given by
the Judge of the grounds of a decree or order; in other words, it must contain or
embody a decision on a dispute affecting the merits as well. In the case before us, the
judgment also contains all the criteria of a decree and this indeed is not contested. We
are, therefore inclined to hold that this case quite clearly falls within the purview of
Article 1, Schedule I and is subject to payment of ad valorem court-fee.

8. The learned Counsel for the parties have cited a number of decisions with the object
of showing that the judgment can neither amount to a decree nor to an order having
the force of a decree and that, therefore, the present case must necessarily fall within
Article 11, Schedule II. We do not consider it necessary to refer in details to all the
cases cited because none of them deals with the Act. The decisions dealing with
Clause 10 of the Letters Patent of the Lahore High Court and clause 15 of the Letters
Patent of the Calcutta and Bombay High Courts, do seem to be of some assistance, but
few of them deal with the question of court-fee, with the result that the ratio decidendi
of most of these cases does not throw much helpful light on the problem which we are
called upon to solve. Without elaborately commenting on them, we may merely notice
them in passing. In Palaniappa v. M. R. Krishnamurthy, 8 an order granting leave to
sue in forma pauperis was held to be a judgment and, therefore, appealable. In
Rajinder Parshad v. Punjab State, 9 an order dismissing a writ petition on the ground
of delay was held to be a judgment subject to appeal under clause 10 of the Letters
Patent. In Mohd. Felumeah v. S. Mondal, 10 it was observed that a judgment within the
meaning of clause 15 of the Letters Patent (Calcutta) could not be construed as a
decree under the Civil P. C. and an ad interim injunction during the pendency of writ
proceedings was held to amount to a "judgment". In Union of India v. Khetra
Mohan,11 there is an exhaustive discussion on the test as to what is a final and what is
an interlocutory judgment. In that case, a suit was brought by the plaintiff on the
original side of the Calcutta High Court against the Union of India for a sum of
money. The trial Judge, after recording his decision on several issues, directed a
reference for the ascertainment of the amount due and payable by the defendant to the
plaintiff. The referee was directed (i) to take accounts on the footing of certain
measurements for ascertainment of the amount due to the plaintiff; (ii) to determine
the market rate for items of work done by the plaintiff and (iii) to ascertain whether
there had been an increase in the rate of labour charges in respect of certain excess
quantity of work done. In an appeal preferred by the defendant, an objection was taken
by the plaintiff that the decision of the trial Judge was not a judgment. It was held that
so far as direction (i) was concerned, it should be held to be a 'judgment' within clause
15 of the Letters Patent and the order should be considered as a whole and it amounted
to a preliminary decree and thus a 'judgment' within the meaning of clause 15 of the
Letters Patent. On this reasoning, it was held appealable on the basis of a decision of
the Privy Council in Ahmed Musaji Saleji v. Hasham Ebrahim Saleji,12 In Sultan Singh
v. Jai Chand, 13 a learned Single Judge of the Punjab High Court sitting on Circuit in
Delhi, laid down that an order of the Rent Controller or the Rent Control Tribunal
under the Delhi Rent Act, 1958 does not become an order having the force of a decree
merely because it is executable as a decree. The order, therefore, was held not to fall
within Article 7, Schedule I, Court Fees Act. We do not consider it necessary or proper
to express any opinion on the correctness or otherwise of this view. Suffice it to say
that this decision does not throw much light on the question before us. According to
the Supreme Court in Asrumati Debi v. Rupendra Deb, 14 an order for transfer of a suit
under clause 13 of the Letters Patent of the Calcutta High Court is not a "judgment"
within the meaning of clause 15 and no appeal lies therefrom because it neither affects
the merits of the controversy between the parties in the suit itself, nor terminates or
disposes of the suit on any ground. In this judgment, there is illuminating discussion
as to the meaning of the word "judgment".

In State of U. P. v. Dr. Vijay Anand, 15 the order of a Division Bench dismissing an
application for review of an order under Article 226 of the Constitution was held to be
a "judgment" within the meaning of clause 10 of the Letters Patent of the Allahabad
High Court. In the body of the judgment, the Court declined to reconcile the decisions
of the Madras High Court on the one hand and those of Calcutta and Nagpur High
Courts on the other on the interpretation of the word "judgment." It was, however,
noticed that there was a cleavage of opinion of the scope of the expression
"judgment." In Shankarlal v. Shankarlal Poddar, 16 it was observed that orders passed
by the District Court or by a Single Judge of the Calcutta High Court in the matter of
winding up petitions are appealable under section 202 of the Companies Act
independently of the provisions of sections 96 and 104 of the Code or of clause 15 of
the Letters Patent and it would be sufficient if the order is judicial as distinguished
from administrative or ministerial order. The Court left open the question of the scope
of the expression "judgment" in the Letters Patent. In Taxing Officer v. Jamnadas
Dharamdas,17 a decree passed by the Tribunal under the Displaced Persons (Debts
Adjustment) Act, 1951 made appealable under section 40 of that Act was held not to
amount to a decree within the meaning of the Court Fees Act. In any event, the award
made by the Tribunal under that Act was not regarded as a decree within the meaning
of Schedule II, Article 11, Court Fees Act, with the result that the memorandum of
appeal filed under section 40 of that Act was held to fall for payment of court-fee,
under Schedule II, Article 11. In Irshad Husain v. Bakshish Husain, 18 an order for
quashing the proceedings under section 20, U. P. Encumbered Estates Act, was held
not to amount to an order having the force of a decree and was, therefore, governed by
Schedule II, Article 11, Court Fees Act. In Kanwar Jagat Bahadur Singh v. Punjab
State, 19 an award of compensation made by an arbitrator acting under the Punjab
Requisitioning and Acquisition of Immovable Property Act was held neither to
amount to a decree nor an order having the force of a decree, with the result that an
appeal against such an award was held to fall under Article 11, Schedule II, Court
Fees Act. In Official Liquidator v. M. U. Qureshi, 20 .an executable order made under
the Companies Act of 1913, which is enforceable under section 199 thereof in the
same manner as a decree, was held to fall for the purposes of court-fee under Article
11, Schedule II, Court Fees Act. According to Gokal Chand v. Sanwal Das,21 the term
'judgment' in clause 10 of the Letters Patent (Lahore) includes any interlocutory
judgment which decides, so far as the Court pronouncing the judgment is concerned,
whether finally or temporarily, any question materially in issue between the parties
and directly affecting the subject matter of the suit. In the reported case, an order on
an application to stay execution pending appeal was held to be a judgment and,
therefore, appealable. In Vastulal Pareek v. Pareek Commercial Bank Ltd,22 an appeal
against an order passed on a claim made by a Bank under section 45-B of the Banking
Companies Act, after the commencement of its winding up proceedings, was held to
fall, for purposes of court-fee, under Schedule II, Article 11, Court-fees Act. In
Dundappa v. S. G. Motor Transport Co., (P) Ltd.23 an appeal against an order refusing
to wind up a company was held to be liable to court-fee under Article 11, Schedule II,
Court Fees Act. In Kanak Sunder Bibi v. Ram Lakhan Pandey, the word "decision" in
Article 133 (1) of the Constitution was held equivalent to the word "decree". In Ram
Prasad v. Tirloki Nath, 25 an order under section 5 (1), U. P. Agriculturists' Relief Act
of 1934 was held not to have the force of a decree and on appeal from such an order,
Court-fee was payable under Article 11, Schedule II, Court Fees Act.

9. As a result of the foregoing discussion, we hold that in the present case the
memorandum of appeal is liable to payment of ad valorem court-fee under Article 1,
Schedule I of the Court Fees Act.

10. S. K. Kapur, J. : I agree.

11. S. N. Andley, J. : I agree.

Order accordingly.

Cases Referred.

1. AIR 1925 P. C. 155,

2. AIR 1955 Patna 56,

3. AIR 1933 Patna 139.

4. AIR 1935 Rangoon 267,

5. AIR 1947 Nagpur 159.

6. AIR 1928 Lahore 904,

7. AIR 1922 Lahore 185
8. AIR 1968 Madras 1 (FB),
9. AIR 1966 Punjab 185 (FB),
10. AIR 1960 Calcutta 582,
11. AIR 1960 Calcutta 190,
12. ILR 42 Cal 914 .
13. 1966 Delhi LT 62,
14. 1953 SCR 1159
15. AIR 1963 Supreme Court 946,
16. AIR 1965 Supreme Court 507,
17. AIR 1956 Bombay 563,
18. AIR 1946 Oudh 254,
19. AIR 1957 Punjab 32,
20. AIR 1945 Lahore 146 (FB)
21. AIR 1920 Lahore 326,
22. AIR 1964 Rajasthan 202,
23. AIR 1966 Mysore 150,
24. AIR 1956 Patna 325 (FB),
25. AIR 1938 Allahabad 50,