LexSHANTI KUMAR R. CANJI versus THE HOME INSURANCE CO. OF NEW YORK
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
550
SHANTI KUMAR R. CANJI
v.
THE HOME INSURANCE CO.
OF NEW YORK
July 24, 1974.
[A. N. RAY, C. J. AND K. K. MATHEW, J.]
Utters Patent of the Bombay High Court, Cl. 15-Judgment, what is
The appellant filed the suit against the respondent in 1964, on the original side of
the High Court, claiming six months salary in lieu of notice and gratuity. An app-
lication for amendment of the plaint in regard to damages for the right to pension
was made in 1970. The respondent contended that the amendment should not be
allowed on the ground inter a/ia that the alleged claim was barred by limitation in
1970. The trial Court aUowed the amendment, but in appeal under 0. 15 of the
Letters Patent, the order was set aside. The High Court considered the applica-
tion for amendment to be a new claim based upon a new set of facts which became
barred on the date of the application for amendment.
In appeal to this Court, it was contended that: (1) the order of the trial Court
was not a judgment and hence not appealab]e under Cl. 15, and (2) the order
was a ·discretionary order and the appel1ate Court should not have
interfered
with the exercise of discretion.
'
Dismissing the appeal,
HELD : (1) A judgment within the meaning of Cl. 15 would have to satisfy
two tests, {a) it must be the final pronouncement which puts an end to the
pro~
ceeding so far as the Court dealing with it is concerned; and (b) it must involve the
deterinination of some right or liability though it may not be necessary that there
must be a decision on the merits. [554 BJ
ln finding out whether any decision is a' judgment within the meaning of Cl.
15, each case must be looked into in order to find out whether there is a decision
<ietemining the right or liability of the parties affecting the merits of the controversy
between the parties .. It is not the form but the nature of the order that has to be
examined in- order to ascertain whether there has been a determination of any .right
or liability. If an amendment merely allows the plaintiff to state a new cause of
action or to ask a new relief or to include a new ground of relief al] that happens is
that it is possible for the plaintiff to raise further contentions in the suit, but it is not
<lecided whether the contentions are right. Such an amendment does nothing more
than regulate the procedure applicable to the suit and does not touch the merits of
the controversy between the parties. Where, on the other hand, an amendment
takes away from the defendant the defence of immunity from any liability_ by reason
of limitation, it is a judgment within the meaning of CL 15. The reason why it be-
·Comes a judgment is that it is a decision affecting the merits of the question between
the parties by determining the right or liability based on limitation. It is the final
deCision as far as the Court is concerned.
The respondent, in the present case,
has acquired. by reason of limitation, immunity from liability, and the appellant,
because of the limitation of the cause of action, has no power to render the respon-
<lent liable for the alleged claim. [554 B-C, G., 555F-H,556A-C]
(2) The order of the trial Court is not one purely based on discretion, and even
with regard to discretionary orders the appellate Court can interfere where the order
is unsupportable in law or is unjust. The High Court was right in holding that
there were no special circumstances to entitle the appellant to introduce the claim
by amendment. [556F]
Asrumati Debi v. Kumar Rupendra Deb Raikot & Ors. [1953}
S. C. R. 1159,
followed.
Justice of the Peace for Calcutta v. Oriental Gas Company, 8 Bengal L. R. 433,
Tu/l'aram v. A/agappa I. L. R. 35 Mad. 1., M. B. Sirkar & Sons v. Powell & Co. A.I.R.
1956. Cal. 630, approved.
Charan Das v. Amir Khan 47 I. A. 255 referred to.
Dayahhai v. Murugappa Chettiar I. L. R. 13 Rang. 457 and Manohar v . . B11i/ram
I.L. R. 1952 Nag. 471, overruled.
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SHANTI KUMAR V. HOME !NSURAKCE CO.
5 5 1
ARGUMENTS
For the appellant: On the first point, an order allowing amendment is
not a "Judgment" within the meaning of clause 15 of the Letters Patent.
Divergent views have been taken by various High Courts as to the
meaning of word "Judgment". This question came before this Court
also in the cruse of 'Asrumatidevi' (1953) SCR 1159-where a question
arose whether an order for transfer of a suit undeExcerpt shown. Read the full judgment & AI analysis in Lexace.