Rakesh Poddar vs Mahendra Agarwal & Anr

This is another attempt to break a barrier that has been in place for a century and a half to get an appeal from an order rejecting an application under Clause 13 of the Letters Patent, 1865 to be entertained and disposed of on merits.

Clause 13 of the Letters Patent gives powers to this Court, inter alia, to transfer suits and other proceedings pending in any Court subordinate to this Court to this Court for its adjudication here. A Court considering a prayer made under Clause 13 of the Letters Patent, scarcely enters into the merits of the matter; the primary considerations being whether one or more of the parties are seriously prejudiced in the forum from which transfer is sought and the grounds of convenience of the parties. An order allowing or rejecting an application under Clause 13 of the Letters Patent has never been regarded as a judgment within the meaning of that word as used in the appellate provision in Clause 15 of the Letters Patent.

The appellant contends that the decision that is generally followed, the one reported at AIR 1953 SC 198 (Asrumati Debi), was based on the narrow meaning given to the word "judgment" as used in Clause 15 of the Letters Patent.

The appellant says that in view of the judgment reported at (1981) 4 SCC 8 (Shah Babulal Khimji v. Jayaben D. Kania) and the recognition of the law on such aspect at paragraph 115 thereof, the dictum in Asrumati Debi cannot be said to hold good any longer. In this context, paragraph 115 of the report from Shah Babulal Khimji may be seen:

"115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be 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 document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment."

It is clear that two situations are covered by paragraph 115 of the report : interlocutory orders and procedural orders as to the admissibility or relevancy of a document tendered in evidence. Neither situation will govern the question whether an appeal can be maintained against an order passed under Clause 13 of the Letters Patent. If at all, an order passed under Clause 13 of the Letters Patent has to be regarded more as a procedural matter, though based on judicial considerations. An order under Clause 13 of the Letters Patent does not deal with the merits of the lis or even look into the same. Such order is passed upon assessing the appropriateness of the forum in which the lis is pending to continue with the lis in the light of the case that is made out for transfer. In course of assessing such prayer, the relative convenience of the parties to the action is taken into consideration. However, whether the transfer is allowed or the same is declined, it has no impact on the merits of the lis. A judgment has traditionally been regarded to be a pronouncement affecting the rights of the parties qua the lis and, per force, has to deal with the merits of the action. No order passed on an application under Clause 13 of the Letters Patent can stray into the assessment of the merits of the rival cases of the parties to the lis. As such, an order made in an application under Clause 13 of the Letters Patent, whether providing for a transfer or declining the prayer, can never be regarded as a judgment for Clause 15 of the Letters Patent to be invoked to carry an appeal therefrom. However, there may be some other remedy available to the would-be appellant herein, but that may not be within the State.

APO No. 391 of 2018 and GA No. 3435 of 2018 are dismissed as not maintainable.

There will be no order as to costs.