Letters Patent Appeal Not Maintainable Against Orders Which Does Not Have Traits And Trappings Of Finality: Supreme Court

The Supreme Court observed that a Letters Patent Appeal cannot be entertained against orders which does not have the traits and trappings of finality.An order of single judge, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties, cannot be treated as a 'judgment' under clause 15 of Letters Patent of the Calcutta High Court, the bench comprising Justices L. Nageswara Rao and B R Gavai observed.In this case, the Division Bench of the Calcutta High Court entertained and finally allowed a Letters Patent appeal against a Single Judge order which, in a suit for infringement of trade mark and passing off, only directed the defendants to file affidavit in opposition and postponed the hearing of the application seeking injunction.Before the Apex Court, the appellant-defendants contended that the order passed by the Single Judge could not be construed to be a 'judgment' within the meaning of Clause 15 of the Letters Patent of the High Court (hereinafter referred to as "Letters Patent") and as such, the appeal itself was not maintainable. On the other hand, the plaintiff- respondents, contended that since a vital and valuable right of the plaintiffs was infringed by non grant of ad interim order by the Single Judge, the appeal was very much tenable. Both sides relied on the judgment in Shah Babulal Khimji v. Jayaben D. Kania and Another (1981) 4 SCC 8.Referring to Shah Babulal (Supra), the bench observed thus:It could thus be seen that both the judgments of Justice S. Murtaza Fazal Ali as well as Justice A.N. Sen have a common thread that, as to whether an order impugned would be a 'judgment' within the scope of Clause 15 of Letters Patent, would depend on facts and circumstances of each case. However, for such an order to be construed as a 'judgment', it must have the traits and trappings of finality. To come within the ambit of 'judgment', such an order must affect vital and valuable rights of the parties, which works serious injustice to 30 the party concerned. Each and every order passed by the Court during the course of the trial, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties, cannot be treated as a 'judgment'. If such is permitted, the floodgate of appeals would be open against the order of Single JudgeThe court noted that, in this case, the order impugned only resulted in postponement of the question as to whether the plaintiff was entitled to grant of an ad interim injunction or not, and that too, by merely three weeks. The court therefore observed:"It is thus clear that there was no adjudication with regard to the rights of the respondentplaintiff to get an adinterim injunction during the pendency of the suit. Though by postponement of the issue with regard to grant of adinterim injunction, the order might have caused some inconvenience and may be, to some extent, prejudice to the respondentplaintiff; the same could not be treated as a 'judgment' inasmuch as there was no conclusive finding as to whether the respondentplaintiff was entitled for grant of adinterim injunction or not. As such, the order passed by the learned Single Judge did not contain the traits and trappings of finality. If it is held otherwise, this will open a floodgate of appeals for parties who may even challenge the order of adjournment or 33 grant of time to the other side to file affidavitinreply. We are therefore of the considered view that the order dated 2nd April 2019 cannot be construed to be a 'judgment' within the meaning of Clause 15 of Letters Patent and as such, the appeal to the Division Bench of the High Court was not tenable."The court also criticized the approach of the Division Bench of the High Court to itself dispose of the interlocutory application instead of relegating it to the court below for its disposal. "When the Division Bench of the High Court itself took 8 months to decide the appeal, it is difficult to understand as to what the learned Judges of the Division Bench of the High Court meant by "unnecessary prolongation of the litigation and utter wastage of time". If the learned Judges of the Division Bench were so much concerned with the prolongation of litigation, they could have very well requested the learned Single Judge to decide the injunction application within a stipulated period. Instead of waiting for a period of 89 months, this could have been done by them at the very first instance when the appeal was listed. The hierarchy of the trial court and the appellate court exists so that the trial court exercises its discretion upon the settled principles of law. An appellate court, after the findings of the trial court are...

Letters Patent Appeal Not Maintainable Against Orders Which Does Not Have Traits And Trappings Of Finality: Supreme Court

Ashok KM

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