MUHAMMAD HALEEM, J. --This is a Letters Patent appeal against the order dated the 15th of May 1970, of a learned Single Judge of this Court by which he vacated the interim order of status quo dated the 3rd of March 1970. The dispute relates to houses bearing Survey Nos, 41/6 and 42/7. The former comprises one room, bearing Sub No, 7 while the latter six rooms, bearing Sub Nos, 1 to 6 and each is described as a house. They are situated in Hyderabad Cantonment and were purchased in public auction by respondent No, 2 on 7th of February 1964 ; she was accordingly issued a P. T. 0. dated the 20th of April, 1964 followed by a P. T. D. dated the 29th of April 1965.
Mutation in her name was effected in the records of the Contonment Board on the 23rd of June 1965. It appears, thereafter, that respondent No, 2, initiated proceedings of ejectment of the tenants under West Pakistan Urban Rent Restriction Ordinance, 1959 and orders for their ejectment were granted but before the tenants could be ejected, an application was filed by the appellant in September 1966, under section 4(3) of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958, before the Settlement Commissioner, exercising powers of the Chief Settlement Commissioner, Karachi, in which it was prayed that the house bearing Sub No, 7 be declared a temple and the six houses bearing Sub Nos, 1 to 6 as property attached to the temple. The Settlement Commissioner vide his order dated the 2th of October 1969, accepted the application to the extent that he granted a declaration that house bearing Sub No, 7 is a temple but rejected the other relief namely, the houses bearing Sub Nos, I to 6 are attached to the temple. The appellant thereupon appealed to this Court under section 4(4) of the Displaced Persons (Compensation and Rehabilitation) Act (XXVII of 1958), against the order of the Settlement Commissioner rejecting his other relief namely, the declaration sought in respect of six houses bearing Sub Nos, 1 to 6.
Alongwith the appeal an application under Order XLI, rule 5 read with section 151, C. P. C. was filed to the following effect: "It is prayed on behalf of the appellant that due to the facts disclosed in the memo. of appeal and the accompanying affidavit that this Court will be pleased to grant a stay restraining the respondents from ejecting the tenants of the appellant from the property attached to the Mander and in dispute before this Court."
The appeal was admitted to regular hearing on the 3rd of March 1970, and in the meantime status qu) was ordered. Again on the llth of May 1970 when this matter came up for hearing after notice to respondent No, 2, the learned counsel stated : "He has the oral instructions of the appellants' Evacuee Trust Board that they would be willing to furnish undertaking to this Court in respect of the interim stay order dated 3-3-1970."
He took time to get instruction in writing for being submitted to Court on the 15th of May 1970. The learned counsel for respondent No, 2, however, stated that he had no objection. The mater again came up before a learned Single Judge on the 15th of May 1970 and upon the ground that the letter containing the statement of the Secretary of the appellant d d not amount to any undertaking, withdrew the earlier order of status quo and dismissed the application. It is against this order that the appellant has filed this appeal under clause 10 of the Letters Patent.
2. At the outset, on behalf of respondent No, 2, an objection was taken as to the maintainability of the appeal on the ground that the order withdrawing the earlier order of status quo does not determine any right or liability and therefore, it is not appealable as a Judgment under clause 10 of the Letters Patent. For and against the proposition, the learned counsel for the parties cited the under-noted cases : (i)Mohabir Prosad Singh and others v. Adhiketi Kunwar and others I L R 21 Cal. 474, (ii)Srimantu Raja Yarlagadda Durga Prasada Nayadu and another v. Srimantu Raja Yarlagadda Malikarjuna Prasada Nayadu I L R 24 Mad. 358, (iii)T. V. Tuljaram Row v. M. K. R. V. Alagappa Chettiar 1 L R 35 Mad. 371, (iv)Abdul Nahi Saheb v. Martri Ratnalakshinammah AIR 1948 Mad. 371, (v)Industrial Sales and Services, Karachi and others v. Archifer Oki! Laboratories Ltd. PLD 1969 Kar.
418, (vi)Mumtaz Khan v. Chief Settlement Commissioner PLD 1966 SC 276,
(vii) Ghularn Hussain and another v. Ghulatn Mustafa and others PLD 1967 Lah. 439, and
(viii) Syed Iqbal Hussain v. Mst. Serwari Begum PLD 1961 Lah. 1138.
In support of the contentions to the non-maintainability of the appeal, the learned counsel for the respondent relied on the case of Mohabir Prosad Singh and others v. Adhikari Kunwar and others and Srimantu Raja Yarlagadda Durga Prasada Nayadu and another v. Srimantu Raja Yarlagadda Mallikerjuna Prasada Nayadu. In these two cases the question for consideration was whether an order refusing to stay the execution of the decree was a Judgment under Clause 15 of the Letters Patent (which corresponds to clause 10 of the Letters Patent of this Court). The answer to this question was given in the negative upon the ground that the order did not affect the merits of the question between the parties by determining any right or liability in dispute, either in the suit or appeal; and it was therefore, that the order was not appealable as a Judgment under clause 15 of the Letters Patent. The Madras case cited above followed the view of the Calcutta High Court expressed in the case of Mohabir Prosad Singh and others v. Adhikari Kunwar and others in which reliance was placed on an earlier view of that Court in the case of The Justices of the Peace for Calcutta v. The Oriental Gas Company . This view was not accepted in the form in which it was expressed in the subsequent Madras case reported as T. V. Tuljarama Row v. M. K. R. V. Alagappa Chettiar. In this case also an order refusing to frame an issue was appealed as a Judgment under1 clause 15 of the Letters Patent and the question which arose for decision was whether it was a Judgment under clause 15 of the Letters Patent. The question was referred to a Full Bench and two of the three learned Judges comprising the Bench gave separate Judgments while the third concurred with them. Sir Arnold white Chief Justice, gave a wider meaning to the word "Judgment" and in his view, orders other than those passed as a step towards obtaining a final adjudication in the suit would be covered by the word "Judgment". While rejecting the view expressed in The Justices of the Peace for Calcutta v. The Oriental Gas Company, the learned Chief Justice observed.
"Speaking generally I think the word 'Judgment' means any `final order, decree or Judgment' within the meaning of those words as used in section 12 of the English Judicature Act, 1875. An order made on an application which is interlocutory in point of form may be a judgment within the meaning of section 15 of the Letters Patent. On the other hand I am not prepared to say as was held in The Justices of the Peace for Calcutta v. The Oriental Gas Company and in Sonbai v. Ahmedabbhai Habibbhai (1872) 9 B H C R 398 it must be a decision though it does not affect the merits of the suit or proceeding and does not determine any question of right raised in the suit or proceeding."
Krishaswa mi Ayyar, J. after reviewing the authorities held that an interlocutory order would not be covered within the meaning of the word "Judgment", but the word "Judgment" would cover an interlocutory or preliminary Judgment. He accordingly repelled the contention that all orders were included within the term "Judgment". The same question arose for decision in the case of Abdul Nabi Sahib v. Martri Ramalakshmammah and it was decided on the view taken by Sir Arnold White, Chief Justice in T. V. Tuljaram Row v. M. K. R. V. Alagappa Chettiar.
2. While construing the term "Judgment" in Mumtaz Khan v. The Chief Settlement and Rehabilitation Commissioner and another their Lordships of the Supreme Court considered the Calcutta case and the Madras case reported as "The Justices of the Peace for Culcutta v. The Oriental Gas Company" and "T. V. Tuljaram Row v. M. K. R. V. Alagappa Chettiar" and observed at pages 281-282 of the report as under :- "In both these judgments, reference was made to a decision of the Calcutta High Court published as Justices of the Peace for Calcutta v. The Oriental Gas Company 1872 Sutb. W. R. 374 and a decision of the Madras High Court in T. V. Tuljaram Row v. M. K. R. V. Alagappa Chettiar I L R 1912 Mad.
1. In the Calcutta case Couch, C. J. had defined "Judgment" in the context of clause 15 of the Letters Patent of that High Court (which corresponds, to clause 10 of the West Pakistan High Court) as meaning "a decision which affected the merits of the question between the parties, by determining some right or liability, which may be either preliminary or interlocutory, the difference between them being that a final judgment determines the whole cause or suit and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined". In the Madras case, apparently, the definition given by Couch, C. J., was considered to be too narrow and Sir Arnold White, the learned Chief Justice, thought that the test should be 'not the form of the adjudication but its affect in the suit or proceeding in which it is made'. If, according to him, its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding, 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 would be a `Judgment', within the meaning of the clause."
Their Lordships also considered the Full Bench Judgment of the Lahore High Court reported as Firm Shaw Hari Dial & Sons v. Messrs Sahna Mal Beli Ram , wherein the definition attempted by the Madras High Court in T. V. Tuljaram Row's case was accepted as good working guide though it was not regarded as an exhaustive definition. The emphasis was on the word "Judgment" in clause 10 of the Letters Patent which was unqualified by any adjective. Concluding their Lordships held that the word is of wider import and observed at page 283 of the report as under :-2 "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. Reference in this connection may be made to the explanations given in Warton's Law Lexicon, under the heading `Judgment'."
In Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd. a Division Bench of the Karachi Seat, as it then was, considered this question and again reviewed the case- law on the subject and reached the following conclusion : "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 deducted from the case-law and which, by no means, provide an exhaustive list, can be kept in view."
It is clear from the above discussion that the word 'Judgment' cannot be given a limited meaning.
The view propounded in the earlier Madras case reported as Srimantu Raja Yarlagadda Durga Prasada Nayadu and another v. Srimantu Raja Yarlagadda Mallikarjuna Prasada Nayadu and the Calcutta case reported as Mohabir Prosad Singh and others v. Adhikari Kunwar and others which took support from the view expressed in the case of The Justices of the Peace for Calcutta v. The Oriental Gas Company has not been accepted either in the Supreme Court case or in the Division Bench case of the Karachi Seat. It is therefore, not possible to exclude orders from the term "Judgment" as it is not qualified by any adjective and a wider meaning has to be given to it. In the instant case the order vacating the status quo granted earlier affects the rights of the parties though temporarily in the context of the decisions discussed above, and accordingly we are of the view that the order is appealable as a "Judgment" under clause 10 of the Letters Patent. The contention of the respondent as to the non-maintainability of the appeal has no substance and is repelled.
3. However, we are of the view that the relief sought in the application under Order XLI, rule 5,C. P. C. was misconceived. The ejectment of tenants was under the West Pakistan Urban Rent Restriction Ordinance, 1959, and those proceedings were not challenged before this Court and accordingly their ejectment could not have been stayed by way of an interlocutory relief in an appeal filed against the order of the Settlement Commissioner rejecting the declaration. The appellant could only ask for the suspension of the impugned order or other ancillary relief connected therewith which was not done. It was for the tenants to resist their ejectment before an appropriate forum, if so advised. In this view of the matter, the question whether the learned Single Judge erroneously refused to consider the statement as an undertaking does not arise.
4. For the foregoing reasons we do not see any substance in this appeal and it is accordingly dismissed with no order as to costs. (1872) 8 B L R 433 AIR 1942 Lah. 95