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Cavil Appeal No. 19 of 1953, decided on 4th August 1953 against the order of Abdul Ghani, J. dated 4th July 1953.

Azad Jammu and Kashmir Courts and Laws Code, 1949, S. 13, cl. 3-' Judgment" and "Order"-Either alternative or synony mous-"Order" refers only to such orders as determine a right or liability-Order refusing to allow further opportunity to summon witnesses not such an order and not appealable.

Only those orders passed by a Judge in Single Bench are appealable to the High Court under clause 3 which decide any thing material as to any issue though they may be in the nature of interlocutory orders and orders which merely endeavour to co11ect material necessary for the decision of any issue in the suit tried by a Judge in Single Bench are not appealable. The order refusing to allow further opportunity to examine witnesses in question falls in the last category and consequently is not appealable.

Yaqub Ali for Appellants.

Muhammad Sharif and Mushtaq Hussain for Respondent.

-The point arising in this appeal is whether a certain order mace by a learned Judge in Single Bench is or is not appealable within the meaning of section 13, clause 3 of the Azad Jammu and Kashmir Courts and Laws Code of 1949. The facts giving rise to this appeal may be briefly sum marised here. The appellants brought a suit for a declaration and permanent injunction against the Government of Azad Jammu and Kashmir in respect of a forest contract. As the jurisdictional value of the suit exceeds Rs. 10,000 it was made over to a Single Judge of this Court under section 13, clause 2 of the Azad Jammu and Kashmir Courts sad Laws Code of 1949 for trial. A preliminary objection was taken on behalf of the Government this the suit was not maintainable because a proper police required under section 80 of the Civil Procedure Code was not given before its institution. The learned Judge in Single Bench raised a preliminary issue covering this objection arid directed the appellants to produce any evidence considered necessary for this issue on 4th July 1953. The appellants remained three witnesses on the said date and then requested for further time. The learned Judge in Single Bench refused to give the appellants further opportunity for summoning the witnesses on the ground that they had ample time to summon all the witnesses considered necessary by there for proving the preliminary issue and they took no steps in this connection. From this order an appeal was filed in the High Court. The appeal came up for hearing before me on the 11th July 1933. 1 entertained some doubts as- to the appeal being competent under the provisions of section 13, clause 3 of the Azad Jammu and Kashmir Courts and Laws Code of 1949 and considered proper to have an authoritative decision on the point by cons tituting a Division Bench consisting of myself and the learned Judge in Single Bench for deciding the point whether the appeal was or was not competent before giving a decision on merits.

In the course of the arguments which have been very ably and fairly conducted on both sides, we have been referred to the rullings of the different High Courts as regards the interpretation to be put on clause 3 of section 13 of the Azad Jammu and Kashmir Courts and Laws Code of 1949 which allows an appeal to the High Court from the decision of a Judge in Single Bench.

The clause runs as follows : "An appeal shall lie to the High Court from the judgment or order of one Judge in an original civil suit". The learned counsel for the appellants has argued that the word used in clause 3 are plain and unambigu ous and admit of but one meaning which indicates that every judgment or order passed by a Single Judge is appealable to the High Court and hence the order in question which is a formal expression of opinion on the part of the Judge is appealable. In other words, the learned Counsel for the appellants maintains that a Court is at liberty to speculate on the intention of the Legislature and tote construe according to its own notions what ought to have been enacted because to depart from the plain language used on account of such notions is in reality not to interpret the Law but to alter it. If indeed there is any lacuna left Ira the Act which in the present case is that every order whether it determines any legal right or not will be appealable though this is not the case as regards the orders passed under the provisions of the Civil Procedure Code which only allows appeals from certain specific orders, it is for the Legislature to intervene and amend the Act in such a manner as may be expedient. The learned counsel for the Government has contended that if the argument of his adversary is accepted that all orders passed by a Judge in Single Bench are appeal able then it will be well nigh impossible to decide the suit finally and consequently he maintains that if the interpretation of words used to a statute leads to a manifest absurdity or to a clear risk of injustice, its interpretation should be reasonable Gad the absurdity resulting from its strict interpretation should be avoided. The learned counsel on both sides have thus tried to interpret the words used in clause 3 in their own way relying on the rulings bearing on the subject We, however, note that they have not touched the real point In the arguments and it is this "whether the word "Order" is used in clause 3 in the sense in which it is understood according to its definition given in the Civil Procedure Code or in a different sense."

It is agreed to by the parties Counsel that the word "judgment" in clause 3 has been borrowed from "Letters Patent" of several High Courts. It was settled by decisions of different High Courts that the word "Judgment" used in "Letters Patent" means a decision which affects the merits of the question between the parties determining some rights 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 an interlocutory judgment determines only a part of it leaving other matters to be deter mined. In other words, it was ruled that it also included orders which determine the question between the parties affecting some right or liability. This being the definition of the word "judgment" adopted by the several. High Court for the purpose of "Letters Patent" the simple question which is to be tackled is whether the word "Order" used in clause 3 conveys the same sense as the word "Judgment" used therein.

The fact that the words "Judgment" and "Order" in clause 3 are separated by the word "or" clearly points out that the words "Judgment" and "Order" are either used as alternative or as synonymous. If an authority is needed for this purpose a reference may be made to C. B. 446 "1845" and 5 H & N 312 "1860", It was observed in these rulings that the word "or" is not always disjunctive and is some time interpretative or expository of the preceding word. This being the case we cannot possibly subscribe ourselves to the interpretation of the word "Order', used in clause 3 made by the learned Counsel for the appellants. On the contrary we hold that it should be taken to mean only those orders which determine the question between the parties affecting some right or liability like the word "Judgment". It was introduced in clause 3 in all probability to clarify the confusion arising from the use of word "Judgment" only in "Letters Patent". If it were not so then it was not necessary to couple the word "order" with the word "Judgment" which was considered by the Judges of the various High Courts to include certain orders as well. Besides the position of a Judge in Single Bench is always higher than that of a Subordinate Judge while trying a suit on the original side. If the Civil Procedure Code did not provide en appeal from every order passed by a Subordinate Judge, then where was the necessity of making this provision in the case of an order passed by a Judge in Single Bench. The necessity for introducing the word "Order" in clause 3 only can be said to have arisen because of difficulty felt by the Judges of the various High Courts In defining the word "Judgment" in "Letters Patent". We, therefore, hold that only those orders passed by a Judge in Single Bench are appealable to the High Court under clause 3 which decide anything material as to any issue though they may be in the nature of interlocutory orders and orders which merely endeavour to collect material necessary for the decision of any issue in the suit tried by a Judge in Single Bench are not appealable. The order in question falls in the last catagory and consequently is not appealable.

The result is that we find that the appeal i9 not maintainable and dismiss it without going into the merits of the order under appeal. The costs of the appeal are ordered to be borne by the parties in the special circumstances of the case. Pleader's fee shall be Re. 50.

-I concur.

A.H. Appeal not maintainable

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