Judgment SUBBA RAO, J. (For himself, Sinha, C.J.I. and N. Rajagopala Ayyangar and Venkatarama Aiyar JJ.) This appeal by special leave is directed against the judgment and order of a division Bench of the Allahabad High Court confirming those of a single Judge of that court dismissing the application filed by the appellants to review the order of the High Court dated November 22, 1958. 2. The facts leading up to the filing of this appeal may be briefly stated. The respondent held certain zamindari and agricultural properties in different districts of the State of Uttar Pradesh. On December 22, 1952, the Additional Collector, Banaras, in exercise of the powers conferred on him under the provisions of the U. P. Agricultural Income-tax Act (Act III of 1949), assessed the respondent to an agricultural Income-tax of Rs. 99,964-12-0 for the year 1359 fasli. On September 30, 1955, the respondent filed a petition before the High Court under Art. 226 of the Constitution for quashing the said order on the ground that the Additional Collector, Banaras, had no jurisdiction to make the said assessment. On November 22, 1955, Mehrotra, J., allowed the writ petition quashing the said assessment. The State of Uttar Pradesh did not prefer an appeal against the said order and allowed it to become final. On February 9, 1956, the State of Uttar Pradesh promulgated an Ordinance, being Ordinance No. II of 1956, which was subsequently replaced by U.P. Act XIV of 1956. Under the provisions of the Ordinance, the assessments made by the Additional Collector were retrospectively validated and, under S. 6 thereof, a right was conferred upon any party to the proceedings under the U. P. Agricultural Income Tax Act, 1948,(hereinafter called the Principal Act), wherein any assessment made by an Additional Collector or Additional Assistant Collector was set aside merely on the ground that the assessing authority had no jurisdiction to make the assessment, to apply within 90 days from the date of the commencement of the said Ordinance for a review of the said proceedings in the light of the provisions of the Ordinance, and a statutory injunction was imposed upon a court to review the said order accordingly. Pursuant to the provisions of S.6 of the said Ordinance on March 14, 1956 the appellants filed an application in the High Court at Allahabad for review of its order dated November 22, 1956. Pursuant to the provisions of S.6 of the said Ordinance on March 14, 1956 the appellants filed an application in the High Court at Allahabad for review of its order dated November 22, 1956. Subsequently as stated earlier, the Ordinance was replaced by the U.P. Act XIV of 1956, hereinafter called the Act. In the course of the judgment we shall refer only to the provisions of the Act. The said application was heard, in the first instance, by Mehrotra, J., and he held that S. 11 of the Act, which corresponds to S. 6 of the Ordinance, did not entitle the appellants to file an application for review of an order made by the High Court under Art. 226 of the Constitution. The appellant s petition was dismissed on that ground. The appellants preferred an appeal against the said order to a division Bench of that court. Mootham, C. J., and Srivastava, J., who heard the appeal, dismissed it on two grounds, namely, (1) under Ch. VIII R. 5 of the Rules of Court, a special appeal against an order of a single judge of the court can be maintained only if that order amounts to a "judgment", and an order refusing an application for review not being a "judgment" cannot be the subject of an appeal. (2) on merits, that is on the construction of S. 11 of the Act the view taken by Mehrotra, J. was correct. The present appeal as already stated, was preferred against the said order. 3. Mr. C. B. Aggarwala, learned counsel for the appellants, has raised before us the following points: (1) The order of Mehrotra, J., dismissing the application for review of his earlier order is a "judgment" within the meaning of Ch. VIII R. 5 of the Rules of Court and, therefore, an appeal lies against that order to a division Bench of that Court. (2) The terms of S. 11 of the Act are comprehensive enough to take in an order made by the High Court under Art. 226 of the Constitution quashing the order of assessment, and even if there is some lacuna, the provisions shall be so construed as to carry out the clear intention of the Legislature. (2) The terms of S. 11 of the Act are comprehensive enough to take in an order made by the High Court under Art. 226 of the Constitution quashing the order of assessment, and even if there is some lacuna, the provisions shall be so construed as to carry out the clear intention of the Legislature. (3) In any view, the application for review filed by the appellants could be treated as one filed under Order 47 of the Code of Civil Procedure, and the earlier order reviewed on the ground that there is an error apparent on the face of the record. We shall take the questions in the order they were argued. 4. The first question is whether an appeal lay against the order of Mehrotra J., rejecting the application for review filed by the appellants to a division Bench of the High Court Chapter VIII R. 5 of the Rules of Court provides for an appeal against an order of a single judge. Under that rule a special appeal against an order of a single judge of the court can be maintained only if that order amounts to a "judgment". That rule gives effect to cl. 10 of the Letters Patent for the High Court of Allahabad, which gives a right of appeal against a judgment of a single judge subject to the conditions mentioned therein. The said cl. 10 corresponds to cl. 15 of the Letters Patent for the High Courts of Calcutta, Bombay and Madras. The score of the expression "judgment" came under the judicial scrutiny of the various High Courts: there is a cleavage of opinion on that question. We shall briefly, notice the leading decisions of the various High Courts on the subject. Couch, C. J. in Justices of the Peace for Calcutta v. Oriental Gas Co., 8 Beng LR 433 at p. 452 defines the word "judgment" in cl. 15 of the Letters Patent thus : "We think judgment in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. Couch, C. J. in Justices of the Peace for Calcutta v. Oriental Gas Co., 8 Beng LR 433 at p. 452 defines the word "judgment" in cl. 15 of the Letters Patent thus : "We think judgment in clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or 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." The same High Court in Hadjee Ismail v. Hadjee Mahommed, 13 Beng LR 91 at p. 101 held that an appeal lay under the said clause from an order refusing to set aside an order granting leave to sue to the plaintiff under cl. 12 of the Letters Patent. Therein Couch, C. J., observed: "It is not a mere formal order, or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court it otherwise would not have. And it may fairly be said to determine some right between them, viz, the right to sue in a particular Court, and to compel the defendants who are not within its jurisdiction to come in and defend the suit, or if they do not, to make them liable to have a decree passed against them in their absence." The Bombay High Court followed the Calcutta view. The leading "judgment of the Madras High Court is that in Tuljaram v. A1agappa, ILR 35 Additional 1 at pp. 7,15, where it was held that an order of a single judge in the Original Side refusing to frame an issue asked for by one of the parties is not a judgment within the meaning of cl.15 of the Letters Patent. White, C. J., laid down the following tests : "The test seems to me to be not what is the form of the adjudication, but what is its effect in the suit or proceeding in which it is made. White, C. J., laid down the following tests : "The test seems to me to be not what is the form of the adjudication, but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever 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, I think the adjudication is a judgment within the meaning of the clause." Referring to the decisions of the Calcutta High Court the learned Chief Justice proceeded to state : "On the other hand I am not prepared to say as was held in 8 Beng LR 433 and in Sonbai v. Ahmedbhai Habibhai, 9 Bom HCR 398, it must be a decision which affects the merits by determining some right or liability. I think the decision may be a judgment for the purposes of the section 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." Krishnaswami Ayyar, J., observed much to the same effect : "I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular court is concerned, though it refused to adjudge the merits, must also be deemed to be a judgment : for otherwise the rejection of plaint for defect of form -or insufficiency of a court fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief Justice which could hardly have been his meaning. I may also observe that the "part" which is determined may be a part of the claim separable from the rest or a determination of liability generally though the actual measure of liability may be a matter of account." The Lahore High Court generally followed the view expressed by the Madras High Court. The Allahabad High Court in Muhammad Naim Ul-Lah Khan v. Ihsan-Ullah Khan ILR 14 All. The Allahabad High Court in Muhammad Naim Ul-Lah Khan v. Ihsan-Ullah Khan ILR 14 All. 226, expressed the view that an order which is not appealable under O. 43 R. 1 of the Code of Civil Procedure is not appeal For Citation : AIR 1963 SC 946