What would be the situation where discretion is injudiciously exercised, thereby either affecting the right of a plaintiff (say, his application for exemption is rejected) or as in the present case, despite the legal representatives of the deceased defendant seeking to contest the suit, exemption as prayed for is granted thereby sealing their fate? If at all the policy for implementing the discretion that has been conferred is sought to be frustrated by an order of the trial court and the matter reaches the superior court, such court may either compel the performance of the discretion that is conferred on the trial court in a proper and lawful manner or it may itself pass an order which the trial court should have properly and lawfully passed in the exercise of its discretion.
24. Given the position that Order XLIII does not provide an appeal against an order under sub-rule (4) of Rule 4, if such an order were passed by a trial court on a suit pending on its file (other than the High Court exercising ordinary original civil jurisdiction), the party aggrieved could invoke the High Court's supervisory jurisdiction under Article 227 of the Constitution. Since such remedy is not available to a party to a suit instituted on the original side of the High Court, he cannot be left without a remedy. Bearing in mind the maxim ubi jus ibi remedium, the only option for him is to invoke the appellate jurisdiction under Clause 15 of the Letters Patent provided the test laid down in Shah Babulal Khimjee (supra) by the Supreme Court to determine as to when an order passed by a trial judge would constitute a "judgment" within the meaning of Clause 15 of the Letters Patent, is satisfied. We need not refer to such authority in great detail. Suffice it to note that the decision of a trial court deciding a controversy in a manner affecting the valuable right of one of the parties must be treated to be a "judgment" within the meaning of Clause 15 of the Letters Patent is the law. The order dated April 29, 2016 granting prayer (a) claimed by the petitioners in GA 932 of 2016 was made without duly considering the petitioners' own conduct of being in deep slumber in excess of 7 years despite receipt of information of death of the defendant No. 5. The necessity to proceed with the suit expeditiously without wasting time on substitution of the legal representatives of a non-contesting defendant who has died during the pendency of the suit, should have been the paramount consideration for deciding whether exemption should be granted or not. Unfortunately, the order under appeal in the present case was silent on such aspect. Not only that, an observation was made by the learned Judge that the appellants had not taken any step in the suit. Without being substituted as defendants, they were perhaps left with no option but to intimate the petitioners of the death of the defendant No. 5, which they did. We are unhesitatingly of the view that the said order dated April 29, 2016 did affect the right of the legal representatives of the defendant No. 5 and, therefore, was a "judgment" within the meaning of Clause 15 of the Letters Patent; consequently, the appeal was well-nigh maintainable thereunder. Also, the discretion conferred not having been properly and lawfully exercised by the learned Judge, the Division Bench rightly interfered with the order under challenge. The first contention of Mr. Sen, accordingly, stands overruled.
IN THE HIGH COURT OF CALCUTTA
R.V.W.O. No. 44 of 2016, G.A. No. 2924 of 2016 arising out of GA 1950 of 2016 in APO 212 of 2016 arising out of GA No. 932 of 2016 in CS No. 136 of 2006
Decided On: 17.05.2017
Hon'ble Judges/Coram:
Dipankar Datta and Arijit Banerjee, JJ.
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