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2001 DIGILAW 667 (MP)

Shantibai v. Ganpat Rao Gujar

2001-09-07

R.B.DIXIT, S.P.SRIVASTAVA

body2001
JUDGMENT 1. This Letters Patent Appeal is directed against an order passed by a learned Single Judge of this Court whereunder, while keeping a regular first appeal filed under section 96 of the Civil Procedure Code, 1908, pending, after allowing an amendment in the plaint on the application filed by the cross-objector - plaintiff, the trial Court has been directed to frame' additional issues arising on the amended pleadings and remit its findings to this Court within a period of four months. 2. Feeling aggrieved by the aforesaid judgment and order passed by the learned Single Judge, the defendants have now come up in Letters Patent Appeal praying for setting aside of the impugned judgment with a direction to the learned Single Judge to decide the appeal on merits. 3. We have heard the learned counsel for the parties and have' carefully perused the record. 4. In the present case, during the pendency of the first appeal, an application seeking amendments in the plaint had been filed by the cross-objector, plaintiff on 11.1.1995. In this application" the plaintiff had prayed for several amendments in the plaint asserting that his predecessor-in-interest, Babaji Rao Gujar was a Jagirdar in the Gwalior State and was also a 'Sardar, Muafidar and Siledar'. It was also asserted that the succession to the rights of Babaji Rao Gujar were regulated by the Qawaid Jagirdaran, Samvat 1970 and the plaintiff was entitled to the succession in view of the right of primogeniture to the exclusion of the defendants. It was also asserted that the properties in suit detailed in the schedule 'Aa, Ba, Sa' were the properties of Jagir grant which had been received by his predecessors-in-interest. It was claimed that in view of the right of primogeniture, the plaintiff alone was entitled to succeed to them as a sole owner to the exclusion of the other defendants. Another plea in regard to the property in dispute being impartible and on its basis a claim of sole ownership to the exclusion of the defendant~ on the strength of the rule of primogeniture was also set up. The plaintiff also set up a case to the effect that the plaintiff and the defendants had the status of Jagirdars and were the successors-in-interest of Babaji Rao Gujar who was a 'Jagirdar, Sardar, Muafidar and Siledar'. 5. The plaintiff also set up a case to the effect that the plaintiff and the defendants had the status of Jagirdars and were the successors-in-interest of Babaji Rao Gujar who was a 'Jagirdar, Sardar, Muafidar and Siledar'. 5. The aforesaid application seeking amendments in the plaint by the cross-objector, plaintiff was objected to by the defendants / appellants. 6. The learned Single Judge, vide the impugned judgment allowed the said application and in consequence thereof permitted the defendants to amend the written statement or to file an additional written statement. The trial Court was directed to frame the issues which may arise on the new pleas brought on record by way of amendments and take evidence as adduced by the parties, hear the parties and record its finding and send the finding to this Court within a period of four months from the date of receipt of the record. 7. In the aforesaid circumstances, it is obvious that if the order allowing the amendments in the plaint is found to be contrary to law, the very basis for the impugned action will become non-existent and in that case no further action as directed by the learned Single Judge would be called for. 8. It may be noticed that in the impugned judgment, the learned Single Judge, himself had observed that "......Here, no doubt it is true that the plaintiff originally claimed the right alleging that the property was a joint Hindu family property and is now seeking a right on the basis of a legal plea relating to the right of primogeniture. The amendment application as mentioned above shows that the plea could not be taken in the plaint on account of mistake 'inadvertence relating to the fact and law. This amendment does not change the nature of the case or is not such which displaces the defendants-appellants from any right which might have accrued to them. It is purely a legal plea based upon certain admitted facts as claimed by the plaintiff-respondent in the application. Thus, the amendment is also necessary for complete adjudication of the controversy between the parties. In my view, therefore, it can safely be allowed." 9. It has been strenuously urged by the learned counsel for the appellants that the amendments sought for were wrongly taken to be raising purely a legal plea based upon certain admitted facts. Thus, the amendment is also necessary for complete adjudication of the controversy between the parties. In my view, therefore, it can safely be allowed." 9. It has been strenuously urged by the learned counsel for the appellants that the amendments sought for were wrongly taken to be raising purely a legal plea based upon certain admitted facts. In this connection, it has been urged that Qawaid Jagirdaran, Samvat 1970, published in the Gwalior Government Gazette dated 4.7.1914, clearly indicates that "Jagir" was a reward in consideration of past service and the State had a direct interest in the preservation of Jagirs in their entirety and their continuance (if the grant is hereditary) in the particular families on which they were conferred. 10. It may be noticed that the term 'Jagirdar' was defined in the Qawaid Jagirdaran, Samvat 1970, which included within its ambit a "Sardar" in enjoyment of a Jagir consisting of one or more entire villages or a Sardari cash allowance. The definition also included within its ambit "Istamurardar" of an entire village or villages. It also includes a "Darakdar" in enjoyment of an entire village or villages or a Darakadari cash allowance. 11. The contention of the learned counsel for the appellants is that the mere fact that a title of 'Sardar' was conferred on a person was not sufficient to bring him in the category of a "Jagirdar". It was also pointed out that according to the plaintiff himself, as indicated in the additional evidence referred to in his application filed by him under Order 41 Rule 27 CPC, on 17.10.1995, his predecessor-in-interest, Babaji Rao Gujar had married his daughter, Lakshmi Bai to Maharaj Jiyaji Rao Scindia and was conferred the title of 'Sardar' by the "Darbar" in the year 1843, at the time of marriage, in view of the new relationship having been established and Babaji Rao Gujar was also given a grant of Rs. 1,500/per month from the Muafi and Rs. 1,000/- per month from 50 ras 'Sige Siledari'. 12. What has been submitted is that it was not a case where Jagir had been rewarded in consideration of the past service. The conferment of the title 'Sardar' was on account of the relationship which had been formed with the marriage of the daughter of Babaji Rao Gujar with Jiyaji Rao, the Sovereign, and the award of Rs. 12. What has been submitted is that it was not a case where Jagir had been rewarded in consideration of the past service. The conferment of the title 'Sardar' was on account of the relationship which had been formed with the marriage of the daughter of Babaji Rao Gujar with Jiyaji Rao, the Sovereign, and the award of Rs. 1,500/- per month from the Muafi and Rs. 1,000/- per month from 50 ras 'Sige Siledar' was also as a result of newly created relationship. 13. When the parties went to the trial, it is pointed out that there was no dispute between the nature of the properties which were claimed to be the joint Hindu family coparcenary properties. The fact that the predecessor of the plaintiff was carrying the title of 'Sardar' was mentioned in paragraph 1 of the plaint. The fact that the plaintiff was the eldest son of Anand Rao Gujar was also mentioned in paragraph 2 of the plaint but nowhere it was pleaded that the status of Anand Rao Gujar was that of a "Jagirdar". It was also mentioned that Anand Rao Gujar had been granted Muafi and Siledari but no case that he was "Jagirdar" had been set up. The plaintiff had come up with a clear and categorical case that as soon as Anand Rao Gujar died on 16.8.1962, the succession to the properties left by him was governed by the Hindu Succession Act. It was also asserted that the plaintiff as well as the defendants were the members of a joint Hindu family. In paragraph 5 of the plaint, it had been mentioned that on his death, Anand Rao Gujar had left behind houses, land and grove besides ornaments etc., The properties left behind by Anand Rao Gujar had been detailed in the schedule attached with the plaint. The plaintiff had claimed a decree of partition of the movable and immovable properties and the separation of his share therein and prayed that he be put in possession thereof. He had also prayed for the accounting. A decree was' also prayed for a declaration that the defendants were not entitled to have any grant of the 'Nemnuk' which was being paid from the Muafi and Siledari and he was entitled to the entire amount of 'Nemnuk'. 14. He had also prayed for the accounting. A decree was' also prayed for a declaration that the defendants were not entitled to have any grant of the 'Nemnuk' which was being paid from the Muafi and Siledari and he was entitled to the entire amount of 'Nemnuk'. 14. The question therefore which arises for consideration is as to whether the amendment sought for, which indicates taking of a somersault in the basic case set up in the plaint, can be permitted to be incorporated in the plaint and whether such amendment will have, the effect of necessarily changing the entire nature of the case to the prejudice of the defendants. As has already been indicated hereinabove, initially the case taken up by the plaintiff was that of a co-sharer only and that too on the strength of being a coparcener in a joint Hindu family to which the property in dispute belonged. Now the case sought to be taken up is that he is the sole owner of the property to the exclusion of the other defendants on the basis that the status of his predecessor-in-interest was that of a "Jagirdar" as contemplated under the Qawaid Jagirdaran, Samvat 1970. 15. The learned Single Judge in the impugned order, has expressed the view that the plea sought to be raised by way of the amendment was only a legal plea indicating thereby that no investigation into the disputed questions of fact was involved. 16. We are of the considered opinion that the aforesaid view of the learned Single Judge, taking into consideration the existing original pleadings of the parties and the nature of the evidence already led, is not at all sustainable in law. 17. As has already been noticed hereinabove, both the parties had gone to the trial with specific pleadings to begin with that the properties were joint Hindu family properties. While the case of the plaintiff was that this status continued till the filing of the suit in the year 1977, the case of the defendants was that the plaintiff, along with his mother, had separated in the year 1940 having whatever share they had and, in that view of the matter, had no concern with the properties mentioned in the schedule attached with the plaint. The plaintiff had in clear-Cut and categorical terms persisted throughout the trial of the suit that the properties in question belonged to a joint Hindu family denying any partition as claimed by the defendants. In such a situation, after inviting a decision of the trial Court on the pleadings of the parties and on the consideration of the evidence led by the parties to the suit in regard to their respective claims as set out in the plaint as well as in the written statement, whether the pleadings now sought to be brought on record by way of amendment will amount to a change of the case altogether had to be considered after taking into account the relevant tests which stand attracted in such cases. 18. One of the tests in this connection is to find out whether the amended pleadings amounted to taking a somersault and a volte-face which will require bringing on the record, evidence contrary to the evidence already led by the plaintiff. 19. The learned counsel for the contesting respondent has strenuously urged that in the present case, the ratio of the decision of the Apex Court in the case of Haji Mohammed Ishaq Wd. S.K. Mohammed and others v. Mohammed Iqbal and Mohammed Ali and Co., reported in AIR 1978 SC 798 , is attracted and taking into consideration the implications arising thereunder, the impugned order does not call for any interference. 20. In the present case, taking into consideration the nature of the pleadings and the clear cut and categorical admissions of the plaintiff contained in the pleadings about his status qua the property in dispute being that of a Hindu undivided family and further the relief seeking partition and separation of his share by metes and bounds, the plea of sole ownership of the properties in dispute will definitely require evidence altogether different from the evidence required in respect of the• pleas as originally raised. 21. In order to sustain the plea of sole ownership, it had to be established that besides being a "Sardar", the common ancestor of the parties had been vested by the Sovereign with jagirdari rights. It was further required to be established that' Jagir' had been granted on account of the past service. 21. In order to sustain the plea of sole ownership, it had to be established that besides being a "Sardar", the common ancestor of the parties had been vested by the Sovereign with jagirdari rights. It was further required to be established that' Jagir' had been granted on account of the past service. The evidence along with the application filed under Order 41 Rule 27 CPC, sought to be relied upon by the plaintiff shows in clear cut and categorical terms that the Sovereign had in fact not recognised the common ancestor to be a' Jagirdar' as contemplated under the Qawaid Jagirdaran, Samvat 1970. There is nothing on the record to indicate that apart from the conferment of the title of 'Sardar' and that too in view of the relationship on account of the marriage in the Sovereign's family, there was any conferment of 'Jagirdari' rights. In such a situation, the new pleadings sought to be brought in by way of an amendment at the appellate stage converting the suit for partition and separation of the joint Hindu family property into a suit for declaration of the sole ownership rights and the recovery of the possession thereof and being put in possession of the same as an exclusive owner definitely amounted to taking a somersault and a volte-face. 22. In its decision in the case of Dattatraya alias Prakash and others v. Krishna Rao alias Lala Saheb Baxi through L. Rs., reported in 1991 RN 408 = AIR 1991 SC 1972 , the Apex Court had pointed out that it was settled law that succession to an impartible estate is governed by the rule of primogeniture and the eldest male member of the family would succeed by survivorship to the impartible estate. In the Jagir, the estate descended on the eldest male member of the family by rule of primogeniture.- It was also observed that an impartible estate, though, ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore, still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains. 23. This right, therefore, still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains. 23. It was also pointed out that the impartible estate, though descends by rule of primogeniture and survivorship on the eldest male member of the family, it must also be proved that the junior members gave up expressly or by implication his right to a share therein. 24. The income of an impartible estate, it was pointed out, cannot be taken to be an income of the undivided family but has to be taken to be the income of the present holder, notwithstanding that he had sons or brothers from whom he is not divided. The holder of an impartible estate can incorporate other properties belonging to him with that estate so as to make them also impartible and descendible to a single heir by survivorship. 25. In the aforesaid case, it was borne out from the record and was also not controverted even across the Bar that on seven successive generations 'Jagir estate' had devolved on the eldest male lineal descendant by the rule of primogeniture. It had also been established that the Jagir had been granted under a deed. (Emphasis supplied) 26. It was pointed out that the accretions made in such estate out of its income are impartible estate governed by the rule of primogeniture and it was succeeded by the last eldest male descendant in the family. On such admitted facts, it was held that these properties could not be joint family properties but were separate properties of the last eldest male descendant in the family and the other member has no right to a share therein as a coparcener. It was also pointed that the movables could not be taken to be an accretion to the estate as in the case of an ordinary joint family estate. It must be proved that the holder had impressed the immovable properties as part of the estate. 27. It was also pointed that the movables could not be taken to be an accretion to the estate as in the case of an ordinary joint family estate. It must be proved that the holder had impressed the immovable properties as part of the estate. 27. On the facts found in that case, it was held by the Supreme Court that all the private properties including buildings in the Jagir, belonged to or held by the Jagirdar, remained to be the property of the Jagirdar. All private properties in the Jagir other than impartible Jagir, therefore, remained to be joint family property. 28. In view of the facts and circumstances noticed hereinabove, when in the present case there is nothing on the record to indicate that any jagirdari right had been vested in the predecessor-in-interest of the plaintiff and the fact that the common ancestor was a 'Jagirdar' cannot be taken to be an admitted fact, the plaintiff cannot derive any advantage out of the ratio of the aforesaid decision. 29. There is yet another aspect of the matter which cannot be lost sight of. 30. The learned Single Judge has permitted the parties to lead additional evidence. In the facts and circumstances of the present case, if one the evidence had been led and the plea sought to be raised was only purely a question of law, there was no occasion for permitting the parties to lead additional evidence on facts which the learned Single Judge assumed to be admitted. An admitted fact does not require to be proved. Bringing in fresh evidence at the appellate stage after a period of 18 years had gone by from the date of filing of the suit clearly amounted to permitting the plaintiff to fill up the lacunas in his case for which there could be absolutely no justification. The basic assumption of the learned Single Judge about the relevant facts being admitted is fallacious. 31. The basic assumption of the learned Single Judge about the relevant facts being admitted is fallacious. 31. It may be noticed at this stage that in its decision in the case of Reserve Bank of India and another v. Ramkrishna Govind Morey, reported in (1976) 1 SCC 803 , a three Judge Bench of the Apex Court had set aside the judgment of the High Court allowing an application for amendment at the appellate stage observing that "if the application for amendment made by the plaintiff contained allegations in line with what was stated in the original plaint, the amendments would be redundant; if they were different, no valid reason is given why the plaintiff should be permitted to improve on the case as originally made. The plaintiff's case did not depend on what the defendant might say in the written statement and if what he proposed to introduce in the plaint by way of amendment was relevant to his case, there is no apparent reason why this was left out when the plaint was filed." 32. We are of the considered opinion that the present one was not a case where the proposed amendment could not be held to have resulted in totally changing the nature of the suit as well as the nature of the case of the plaintiff as set up initially. Permitting of such pleas clearly amounted to de novo trial of the suit which could not be permitted in the manner done by the learned Single Judge by remitting issues which were not even framed by the learned Single Judge and were left to be• framed by the trial Court. 33. Allowing the proposed amendments in the facts and circumstances of the case clearly amounted to permitting the plaintiff to resile from the clear cut admissions contained in the pleadings which were binding upon him. The course of action adopted by the learned Single Judge remitting the unframed issues with a blanket permission to bring in fresh evidence on the record filling up the lacunas in the case of the plaintiff virtually amounted to directing a de novo trial of the suit which cannot be held to be justified in law. The application for the amendment deserved to be rejected. 34. The application for the amendment deserved to be rejected. 34. No doubt the Court has very wide powers of allowing amendment, but amendments will be allowed only for the purpose of determining the real questions in controversy between the parties. The real questions in controversy between the parties are those on which issues are framed in the trial Court. Ordinarily, under law, a Court will not allow an amendment which involves a complete change of front in either the case set up in the plaint or in the defence. Just as a plaint cannot be allowed to be amended so as to introduce a new and inconsistent cause of action which would change the nature of the suit, so also the defence cannot be allowed to be altered so as to introduce a different set of circumstances inconsistent with the circumstances pleaded to begin with. 35. There can further be no doubt that in a sense, an appeal is a continuation of a suit but that is only in a limited sense. It does not, however, mean that the rights which could be pleaded and enforced before a suit was finally adjudicated by the first Court, could be pleaded as of right for the first time during the pendency of the appeal. 36. It may be noticed that their Lordships of the Privy Council in the decision in the case of Ma Shwe Mya v. Maung Mo Hnaung, reported in 48 Calcutta 832 at page 835 had observed while dealing with the case of an amendment that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suits." 37. We are further of the view that allowing a change in the nature of the case basing the suit on a totally new ground and giving an opportunity to the plaintiff to adduce false or perjured evidence cannot be permitted. Such an amendment, if allowed, would cause serious prejudice to the defendants for which there can be no justification. 38. In the aforesaid connection, the decision of a Division Bench of the Allahabad High Court in the case of L. Baij Nath v. Mt. Ram Pyari, reported in AIR (34) 1947 All. Such an amendment, if allowed, would cause serious prejudice to the defendants for which there can be no justification. 38. In the aforesaid connection, the decision of a Division Bench of the Allahabad High Court in the case of L. Baij Nath v. Mt. Ram Pyari, reported in AIR (34) 1947 All. 59 may be referred to wherein finding that the proposed amendment in that case, if allowed would have changed the nature of the case as the suit would then have been based on a totally new ground, the application for amendment of the plaint was rejected, observing further that if the amendment had been allowed, it would have enabled the plaintiff to adduce false evidence. The view of the trial Court holding that the plaintiff could not be permitted to harass the defendant was found to be justified and the action of the lower appellate Court in allowing the plaintiff's application for amendment and sending the case back to the first Court was set at naught by setting aside the said order and rejecting the plaintiff's application seeking amendment in the plaint. 39. In its decision in the case of Haji Mohammed lshaq wd. S.K. Mohammed and others v. Mohammed Iqbal and Mohammed AU and Co., reported in AIR 1978 SC 798 , the Apex Court had pointed out that the amendment of the written statement sought in appeal was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of their original defence. It would have brought about an entirely new plea which was never taken in the original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amended petition. In such a situation, the High Court in appeal was found to have rightly rejected the application for amendment in the written statement and adducing the additional evidence. 40. It may also be noticed that an amendment which seeks withdrawal of earlier clear cut and categorical admission cannot be permitted. The Apex Court in its decision in the case of Modi Spinning and Weaving Mills Co. 40. It may also be noticed that an amendment which seeks withdrawal of earlier clear cut and categorical admission cannot be permitted. The Apex Court in its decision in the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co., reported in AIR 1977 SC 680 , considering the question as to whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff had indicated that an inconsistent plea which would displace the party completely from the admissions made by it in the written statement cannot be allowed as in that case the other party will be irretrievably prejudiced by being denied the opportunity of extracting the admissions from that party. 41. In its later decision in the case of Heeralal v. Kalyan Mal and others, reported in AIR 1998 SC 618 , the Apex Court indicated that the decision in the case of Modi Spinning and Weaving Mills Co. Ltd. (supra) was a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. It was reiterated that when the amendment sought in the written statement was of such a nature as to displace the plaintiff s case could not be allowed as ruled by a three-member Bench of that Court. The observations made by the Apex Court in its decision in the case of Akshaya Restaurant v. P. Anjanappa, reported in 1995 (II) MPWN 181 == 1995 AIR SCW 2277 were held to be per incuriam. 42. Taking into consideration the facts and circumstances noticed hereinabove, the ratio of the aforesaid decision can be safely applied to the present case as where the plaint is sought to be amended, same tests in such a situation have to be applied. 43. 42. Taking into consideration the facts and circumstances noticed hereinabove, the ratio of the aforesaid decision can be safely applied to the present case as where the plaint is sought to be amended, same tests in such a situation have to be applied. 43. In the present case, the plaintiff who had come up with a clear pleading that all the properties which were the subject-matter of the suit were joint Hindu family properties and which fact had been admitted in the written statement, seeks to get it changed setting up a claim that none of the properties could be held to be the joint Hindu family properties and were the exclusive properties of the plaintiff and he was the sole owner thereof to the exclusion of the defendants. The change of the suit for partition of the properties mentioned in the schedule attached to the plaint and separation of the plaintiff's share therein into a suit for declaration that the plaintiff is the sole owner thereof and the relief of putting him over the possession thereof necessarily amounted to dispossession of the defendants from that property. The proposed amendments, therefore, did not deserve to be allowed to be incorporated at such a late stage after 18 years of the filing of the suit and that too, on an application filed in the cross-objection by the plaintiff. 44. The learned counsel for the plaintiff has challenged the maintainability of the Letters Patent Appeal asserting that since it is directed against an interlocutory order, it is not entertain able or not maintainable as the impugned order cannot be taken to fall within the ambit of the expression 'judgment' envisaged under clause 10 of the Letters Patent of Nagpur. 45. In the aforesaid connection, it may be noticed that a Full Bench of the Nagpur High Court, in the case of Manohar Damodar Bhoot v. Baliram Ganpat Bhoot, reported in AIR 1952 Nagpur 357 had observed that a "judgment" means a decision in an action whether final, preliminary or interlocutory which decides either wholly or partially, but conclusively in so far as the Court is concerned, the controversy which is the subject of the action. It does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective. It does not include a decision which is on a matter of procedure, nor one which is ancillary to the action even though it may either imperil the ultimate decision or tend to make it effective. The decision need not be immediately executable per se but, if left untouched, must result inevitably without anything further, save the determination of consequential details, in a decree or decretal orders, that is to say, an executive document directing something to be done or not to be done in relation to the facts of the controversy. The decision may itself order that thing to be done or not to be done or it may leave that over till after the ascertainment of some details but it must not be interlocutory having for its purpose the ascertainment of some matters or details prior to the determination of the whole or any part of the controversy. Observing so, the Full Bench had indicated that some orders of remand are included in the term judgment but not others. Where the Court merely remits an issue for trial or orders that some evidence be taken, it is a progression of the suit but the order itself does not amount to a judgment. But where the Court set aside a decree which decides the controversy, and making a binding order, sends the case back for decision in the light of its remarks, the order must be treated as a judgment. 46. What has been urged by the learned counsel for the respondent is that the impugned order passed by the learned Single Judge cannot fall within the ambit of the expression 'judgment' as envisaged in clause 10 of the Letters Patent of Nagpur and it is, in this view of the matter, that the present Letters Patent Appeal cannot be held to be maintainable. 47. We have given our anxious consideration to the aforesaid submission. 48. As pointed out by the Apex Court in its decision in the case of Shanti Kumar R. Canji v. The Home Insurance Co. of New York, reported in AIR 1974 SC 1719 , in finding out whether the order is a judgment, it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. of New York, reported in AIR 1974 SC 1719 , in finding out whether the order is a judgment, it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. It was observed that where an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it falls within the category of a 'judgment' as 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 trial Court is concerned. 49. It had been further pointed out by the Apex Court in its aforesaid decision that the amendment order is not purely of discretion. Even with regard to discretionary orders the appellate Court can interfere where the order is insupportable in law or is unjust. 50. The aforesaid observations were made in a suit which had been filed in the Bombay High Court itself and was being tried by the learned Single Judge. 51. In its decision in the case of Shah Babulal Khimji v. Jayaben D. Kania and another, reported in AIR 1981 SC 1786 , the Apex Court had pointed out that although the Letters Patent Appeal is a special law, certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a trial Judge to a larger Bench, i.e., to 'internal appeals'. It was pointed out further that a combined reading of the provisions of sections 4,5, 104 and Order 49 Rule 3 of the Code of Civil Procedure lead to the irresistible conclusion that section 104 read with Order 43 Rule 1 of the said Code clearly applies to the proceedings before the trial Judge of the High Court. There is no inconsistency between the Letters Patent Jurisdiction and section 104 read with Order 43 Rule 1 of the Code. There is no inconsistency between the Letters Patent Jurisdiction and section 104 read with Order 43 Rule 1 of the Code. It was also pointed out that section 104 read with Order 43 Rule 1 thereof expressly authorises and creates a forum for appeal against orders falling under various clauses of Order 43 Rule 1 to a larger Bench of the High Court without at all' disturbing, interfering with or overriding the Letters Patent jurisdiction. 52. It was further observed by the Apex Court in its aforesaid decision that there was no inconsistency between section 104 read with Order 43 Rule 1 CPC, and the appeals under the Letters Patent, and there is nothing to show that the Letters Patent in any way excludes or overrides the application of section 104 read with Order 43 Rule 1 or to show that these provisions would not apply to internal appeals within the High Court. The Apex Court further indicated that "even if it be assumed that order 43 Rule I does not apply to Letters Patent Appeals, the principles governing these provisions would apply by process of analogy. Having regard to the nature of the orders contemplated in the various clauses of Orders 43 Rule 1 CPC, there can be no doubt that these orders purport to decide valuable rights of the parties in ancillary proceedings even though the suit is kept alive and that these orders do posses the attributes or character of finality so as to be judgments within the meaning• of clause 15 of the Letters Patent and hence, appealable to a larger Bench". 53. The aforesaid case was also from the Bombay High Court and the suit was being tried by a learned Single Judge. However, the Apex Court had clearly observed that "the concept of the Letters Patent governing only the internal appeals in the High Courts and the Code of Civil Procedure having no application to such appeals is based on a serious misconception of the legal position." 54. The impugned order contains the traits, trappings and qualities and characteristics of a final order. The impugned order contains the traits, trappings and qualities and characteristics of a final order. Although the expression 'judgment' has not been defined in the Letters Patent but whatever tests may be applied, the order impugned in the present case clearly shows that the order has in it the traits and trappings of finality and taking into consideration its ultimate effect, has to be taken to be in the nature of a final order so as to fall within the definition of the 'judgment.' 55. In view of what has been indicated hereinabove, the objection in regard to the maintainability of the appeal is clearly devoid of merit and is not at all sustainable. 56. In the result this appeal succeeds. The impugned order allowing I.A. No. VII/95 filed on 11.1.1995 filed by the plaintiff/cross-objector is .set aside. 57. Consequently, the direction given by the learned Single Judge in the impugned order is also set aside. 58. The first appeal filed by the defendants, along with the cross-objection filed by the plaintiff, shall now be listed before the learned Single Judge for hearing on merits and disposal thereof in accordance with law. 59. Considering the circumstances of the case, there shall, however, be no order as to costs.