MANU/DE/9164/2007

IN THE HIGH COURT OF DELHI

FAO (OS)110/2007
Decided On: 20.12.2007
Appellants: Crocodile Int. Pte Ltd. and Anr.
Vs.
Respondent: Lacoste S.A. and Anr.
Hon'ble Judges/Coram:
T.S. Thakur and Veena Birbal, JJ.
Counsels:
For Appellant/Petitioner/plaintiff: A.S. Chandhiok, Sr. Adv., Swetashree, Sweta Kakkad and
Amit Jain, Advs
For Respondents/Defendant: C.M. Lall and Shikha Sachdev, Advs.
Subject: Civil
Acts/Rules/Orders:
Delhi High Court Act - Section 10, Delhi High Court Act - Section 10(1); Notaries Act, 1952 Section 14; Code of Civil Procedure (CPC) - Section 2, Code of Civil Procedure (CPC) - Section
104, Code of Civil Procedure (CPC) - Order 11 Rule 11, Code of Civil Procedure (CPC) - Order
19 Rule 2, Code of Civil Procedure (CPC) - Order 43 Rule 1; Indian Arbitration Act, 1939 Section 20; Delhi High Court Rules
Cases Referred:
Ameer Trading Corp. Ltd. v. Shapoorji Data Processing Ltd. 2004 (1) SCC 702; Exports
Unlimited v. Delhi State Industrial Development Corporation 1996 37 DRJ 109; FDC Ltd. v.
Federation of Medical Representatives Association (FMRAI) and Ors. AIR 2003 Bombay 371;
Jugal Kishore Paliwal v. S. Sat Jit Singh (1984) 1 SCC 358; Rajesh Wadhwa v. Dr. (Mrs.)
Sushma Govil 37 (1989) DLT 88; Shah Babulal Khimji v. Jayaben D. Kania and Anr. AIR 1981
SC 1786; The Public Trustee v. Rajeshwar Tyagi and Ors. AIR 1972 Delhi 302; University of
Delhi and Anr. v. Hafiz Mohd Said and Ors. AIR 1972 Delhi 102
Disposition:
Appeal Dismissed
Citing Reference:

Discussed

Mentioned

Case Note:
Delhi High Court Act
Section 10 - Objections to the affidavit rejected by a learned Judge with costs of Rs.
50000/- for deliberately delaying the progress--Meaning of the term 'Judgment'-There must be finality in the determination of some controversy arising in the suit
and not merely an order which invokes the procedural provision as a step in aid of a

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final determinationHeld that order does not determine any right leave alone any
valuable right of any one of the parties nor the same determine the controversy in the
suit or any part thereof so as to constitute a "judgment"Held further that once the
witness had appeared in the witness box and on oath solemnly affirmed the contents
of his affidavit which was tendered in evidence, the procedural irregularity in the
notarisation of the affidavit disappeared.
JUDGMENT
T.S. Thakur, J.
1. In cases involving a challenge to the validity of an interlocutory order, the question of
maintainability of an appeal often becomes the subject matter of a forensic debate. The present
appeal is no exception and, in our opinion, rightly so because the order under challenge before
us is neither a decree within the meaning of Section 2 of the Code of Civil Procedure nor is the
same appealable under Order 43 of the Code. An appeal may even then be maintainable
provided the order is "judgment" within the meaning of clause 10 of the Letters Patent read
with Section 10 of the Delhi High Court Act. As to what would amount to a "judgment" under
the said two provisions, is not easy to answer. In the absence of any precise definition of what
would constitute a "judgment", judicial pronouncements alone remain a guiding factor. These
pronouncements have stopped short of drawing an exhaustive list of what would and what
would not constitute a "judgment" under Clause 10 of the Letters Patent. The result is that the
question has to be answered in the peculiar facts and circumstances of each case. Before we do
so in the case at hand, we must briefly state the facts leading to the passing of the order under
challenge and the essence of the matter which the same deals with.
2. The parties are engaged in a legal fight over the trademark and copyright in what the
plaintiff has described as Crocodile Device, in which the plaintiff-respondent claims exclusive
ownership. It took the parties nearly four years of long and laborious proceedings before the
single Judge to bring the suit to the stage of recording evidence of the plaintiff. In support of its
case, the plaintiff filed the affidavits of Shri Christian London, a French National and Shri Anoop
Singh, together with certain documents which were not earlier produced by it. No objection, it
appears, was raised to the production of the said additional documents by the defendantappellant no matter the application remained pending for orders for nearly one year. It waited
to raise objections to the affidavit of Mr. Christian London and the documents enclosed
therewith till the witness arrived from London to depose before the Court. The objections were
to the following effect :
i) That the affidavit which had been executed on foreign soil had not been legalized
nor apostilled, hence was no affidavit in the eyes of law
ii) That the documents sought to be exhibited at Sl. No. 2,3,6,7,8,9 and 10 were
new documents which had been filed by the plaintiffs for the first time together with
affidavits of the witnesses without seeking the permission of the Court and without
explaining the reasons for such belated filing.
iii) Certain documents filed by the plaintiff were in a foreign language and no
translation thereof had been provided as required under the Delhi High Court Rules;
and
iv) That the affidavit contained certain statements and averments which went
beyond the pleadings of the parties, hence was inadmissible as any evidence
unrelated to any averment in the pleadings, was meaningless.
3. The objections were examined and rejected by a learned Judge of this Court by the order
impugned in this appeal. The Court also imposed costs of Rs. 50000/- on the defendant for
deliberately delaying the progress and eventual disposal of the suit. The present appeal, as
already noticed earlier, assails the said interlocutory order on several grounds.

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4. Appearing for the plaintiff-respondent, Mr. Lall raised a preliminary objection to the
maintainability of the appeal. He argued that the impugned order passed by the learned single
Judge did not determine any right or obligation of the parties in the suit either finally or even at
an interim stage. It was contended that the effect of the order passed by the learned single
Judge was that the Court had granted leave to the plaintiff to produce the documents enclosed
with the affidavits subject to any objection which the defendant-appellant may have with regard
to their admissibility and the manner of proof of the contents thereof. It was argued that the
defendant-appellant had, pursuant to the order in question, cross-examined the witness
extensively and brought in all possible legal objections to the admissibility of the documents
and their relevance to the controversy at hand. It was submitted that although the learned
single Judge had for good reasons overruled the objection to the validity of the affidavit sworn
by Mr. Christian London yet the objection could no longer survive after the witness had
appeared before the Court and testified on oath to the truth of the averments made in the
affidavit. It was in that background a matter of procedure which the learned single Judge had
followed and about which there was neither any irregularity nor any illegality. Such matters
relating to the procedure followed in the trial of this suit did not determine either finally or even
at an interim stage the rights of the parties so as to entitle any one aggrieved thereof to
question the order in an appeal like the present.
5. Mr. Chandhiok, learned Counsel appearing for the appellant, on the other hand, argued that
since the order under challenge granted leave to the plaintiff to place on record documents
which had not been filed at the appropriate stage even when they were in its possession, the
same must be deemed to have determined an important part of the controversy. Relying upon
the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania and Anr.
MANU/SC/0036/1981 : [1982]1SCR187 , Mr. Chandhiok argued that filing of documents and
the need for legalization of the affidavit were matters of moment in the order passed by the
Court which would constitute a "judgment" within the meaning of the Letters Patent and would,
Therefore, be appealable. He further submitted that the levy of costs by the learned single
Judge was based on an assumption, no matter unsupported by the record, that the appellant
had deliberately delayed raising of its objections regarding admissibility of the documents. He
urged that an objection to the belated production of documents could be raised only after the
witness had appeared in the witness box and formally tendered the documents in its deposition.
Reliance was also placed by Mr. Chandhiok upon FDC Ltd. v. Federation of Medical
Representatives Association (FMRAI) and Ors. MANU/MH/0038/2003 : AIR2003Bom371 which
was approved by the Supreme Court in Ameer Trading Corp. Ltd. v. Shapoorji Data Processing
Ltd. MANU/SC/0943/2003 : AIR2004SC355 .
6. We have given our careful consideration to the submissions made at the bar and perused the
record. It is common ground that the impugned order is neither a decree nor is the same
appealable under Order 43 of the CPC. Even so, the order passed by a Single Bench in exercise
of his original jurisdiction may be appealable before a Division Bench in case the same is a
judgment within the meaning of Section 10 of the Delhi High Court Act and Clause 10 of the
Letters Patent. The term "Judgment" has not however been defined either in the Delhi High
Court Act or in the Letters Patent. There is all the same no manner of doubt that the term
'Judgment' as it appears in the two provisions, both dealing with the maintainability of appeals
against orders passed by a Single Judge, would carry the same meaning. In the absence of any
specific meaning assigned to the term 'Judgment' in either of the two provisions, what is a
judgment under one must necessarily be a judgment under the other also. Having said so, the
question is whether the order passed by the learned Single Judge in the instant case is
tantamount to a judgment so as to be appealable before a Division Bench. As to what would
constitute a judgment for the maintainability of appeals under the Letters Patent is no longer
rest integra. The cleavage in judicial opinion on the meaning of the term 'Judgment' was
noticed and resolved by the Supreme Court in Shah Babulal Khimji v. Jayaben
MANU/SC/0036/1981 : [1982]1SCR187 . Before we refer to the tests prescribed by the apex
Court in the said decision, we may notice a full bench decision of this Court in University of
Delhi and Anr. v. Hafiz Mohd Said and Ors. MANU/DE/0251/1972 : AIR1972Delhi102 . A Bench
of five judges had in that case assigned a restricted meaning to the term 'Judgment' and opined
that only such adjudications would amount to a judgment as would have the impact of a decree
or an order mentioned in Section 104 read with Order 43 Rule 1 of the CPC. The Court had also

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declined to approve the view that the term 'Judgment' in Section 10(1) of the Delhi High Court
had to be interpreted by reference to the tests laid down by different pronouncements while
interpreting the said expression under the Letters Patent. The above view was followed in The
Public Trustee v. Rajeshwar Tyagi and Ors. AIR 1972 Del 302.
7. The restricted interpretation placed upon the term 'Judgment' in Hafiz Mohd. case (supra) did
not find favor with the Supreme Court in Jugal Kishore Paliwal v. S. Sat Jit Singh : (1984)
1SCC358 . That was a case where an amendment to the written statement was sought and
allowed at the time of framing of issues. An appeal preferred against the said order was
dismissed by a Division Bench of this Court holding that the same was not maintainable in view
of the full bench decision in Hafiz Mohd. Case (supra). In a further appeal before the Supreme
Court, their Lordships held that the decision in Hafiz Mohd.'s case was no longer good law in
view of the decision of the Supreme Court in Shah Babu Lal Khimji's case. The following
passage from the said decision is in this regard apposite :
Counsel for both the parties are present and we have heard them at length. The
High Court was clearly wrong in refusing to go into the merits of the case on the
ground that appeal was not maintainable in view of the full bench decision in
University of Delhi v. Hafiz Mohd. Said. This decision is no longer good law in view
of our decision in the case of Shah Babulal Khimji v. Jayaben D. Kania where we
have laid down various parameters and conditions under which an appeal can lie
from a single Judge to the division bench.
8. What then is the true test to be applied for determining whether an order is a judgment
within the meaning of the Lahore High Court Letters Patent as applicable to the High Court of
Delhi and Section 10 of the Delhi High Court Act can be answered authoritatively only by
reference to the decision of the apex Court in Shah Babulal Khimji's case (supra) The Court had
in that case recognized three distinct kinds of judgments, namely, (i) A final judgment which decides all the questions or issues in controversy so far
as the Trial Judge is concerned and leaves nothing else to be decided;
(ii) A preliminary judgment where the Trial Court by an order dismisses the suit
without going into the merits of the suit but only on a preliminary objection raised
by the defendant or where the Trial Judge passes an order after hearing a
preliminary objection raised by the defendant relating to the maintainability of the
suit such as bar of jurisdiction, res judicata etc.; and
(iii) An intermediately or interlocutory judgment which include orders specified in
Order 43 Rule 1 and even those which are not included in the said provision but
which possesses the characteristics and trappings of finality in that the orders
adversely affect a valuable right of the party or decide an important aspect of the
trial in an ancillary proceeding.
9. Mr. Rohtagi did not place the order impugned in the present appeal in the first two categories
of judgments mentioned above and recognized by the Supreme Court in Shah Babulal Khimji's
case (supra). What he argued was that the impugned order was an intermediately or
interlocutory judgment and was Therefore appealable even when it was not an order of the kind
made appealable under Order 43 of the CPC. We find it difficult to accept that contention. While
dealing with intermediately or interlocutory judgments, the Supreme Court in Khimji's case
cautioned :
There may also be interlocutory orders which are not covered by Order 43 Rule 1
but which also possess the characteristics and trappings of finality in that, the
orders may adversely affect a valuable right of the party or decide an important
aspect of the trial in an ancillary proceeding. Before such an order can be a
judgment, the adverse effect on the party concerned must be direct and immediate
rather than indirect or remote.

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10. Their Lordships drew a distinction between an order refusing leave to the defendant to
defend the suit which was held to be a judgment and an order granting leave which was held
not appealable even when the same adversely affected the plaintiff. Prejudice to the plaintiff in
the latter case was not direct or immediate. It was indirect and remote as the plaintiff continued
to possess the right to show that the defense was false and succeed in the suit. The Court
favored a cautious approach in the matter having regard to the fact that the Trial Judge is a
senior court with vast experience of various branches of law occupying a very high status. The
Court observed that the judge should be trusted in the matter of discretionary orders with due
regard to the well settled principles of civil justice. Their Lordships held that any discretion
exercised or routine orders passed by the trial court in the course of the suit that may cause
some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a
'judgment' otherwise the appellate court (Division Benches) will be flooded with appeals from all
kinds of orders passed by the Trial Judge. The following passage is in this regard apposite: "(1)
That the trial judge being a senior judge with vast experience of various branches of law
occupying a very high status should be trusted to pass discretionary or interlocutory order with
due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine
orders passed by the trial judge in the course of the suit which may cause some inconvenience
or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise
the appellate court (division bench) will be flooded with appeals from all kinds of orders passed
by the trial Judge. The Courts must give sufficient allowance to the trial Judge and raise a
presumption that any discretionary order which he passes must be presumed to be correct
unless it is ex facie legally erroneous or causes grave and substantial injustice."
11. The Court emphasized the importance of finality and the fact that the order decides the
questions in controversy either in an ancillary proceeding or in the suit itself. The Court
observed :
That the interlocutory order in order to be a judgment must contain the traits and
trappings of finality either when the order decides the questions in controversy in
an ancillary proceeding or in the suit itself or in a part of the proceedings.
12. There is no gainsaying that while the term 'Judgment' appearing in the Letters Patent and
Section 10 of the Delhi High Court Act receive a wider and more liberal interpretation than the
word 'Judgment' as used in the CPC, every order passed by a Trial Judge would not amount to a
judgment. The essence of the legal exposition as emerging from Khimji's case is that there
must be finality in the determination of some controversy arising in the suit and not merely an
order which invokes the procedural provision as a step in aid of a final determination.
13.
In
Exports
Unlimited
v.
Delhi
State
Industrial
Development
Corporation
MANU/DE/0430/1996 : 1996(37)DRJ109 a division bench of this Court dealt with an appeal
arising out of an order under Order 19 Rule 2 of the CPC seeking cross-examination of the
deponent of an affidavit filed in the course of proceedings under Section 20 of the Indian
Arbitration Act, 1939. Another appeal disposed of by the same judgment was directed against
an order allowing an application under Order 1 and 4 of the CPC seeking leave to deliver
interrogatories on behalf of the plaintiff for examination of the defendant. Upon a detailed
conspectus of the case law on the subject, Lahoti, J, as His Lordship then was, summed up for
the Court the legal position as under :
Though the word 'judgment' as used in Section 10(1) of Delhi High Court Act cannot
be equated with a 'judgment' amounting to a decree nor can it be confined to
include only such orders as are made appealable under Section 104 read with Order
43 Rule 1 of the CPC, yet, at the same time, every interlocutory order cannot be
regarded as a 'judgment'. An order, though interlocutory, may amount to a
judgment if it decides a stage in a suit or proceeding or affects vital and valuable
rights of the parties and works serious injustice to the party affected. Orders
deciding procedural matters or orders which do not affect the rights of the parties
cannot be treated as judgments; grievance on that score is always capable of being
corrected by the appellate Court in appeal against the final judgment. An order
allowing or refusing leave to deliver interrogatories is merely a procedural step in a

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suit. It does not affect, much less vitally affect, the rights of the parties.
14. The Court held that no appeal was maintainable against an order passed under Order 11
Rule 11 of the CPC as grant or refusal of permission to deliver interrogatories did not amount to
adjudicating any right or obligation of parties in controversy. The Court also held that refusing
the leave to cross-examine the deponent on an affidavit filed in the course of the proceedings
under Section 20 of the Arbitration Act also did not determine any valuable right of any parties
inasmuch as in an appeal preferred against the final order, the party who has been deprived of
such an opportunity shall have the right to raise an appropriate contention before the appellate
court. Both the appeals were in that view dismissed.
15. Applying the principles stated in Khimji's Case and those in the DSIDC's case (supra), we
have no manner of doubt that the order passed by the learned single Judge in the present case
does not determine any right leave alone any valuable right of any one of the parties nor does
the same determine the controversy in the suit or any part thereof so as to constitute a
"judgment" appealable under the Delhi High Court Act or Clause 10 of the Letters Patent as
applicable to this Court. The order passed by the learned single Judge has examined the
additional documents produced by the plaintiff-respondent and come to the conclusion that they
could be allowed to be produced as four out of the five documents were in the nature of public
documents while the documents mentioned at Item No. 5 of the order passed by the learned
single Judge were in the nature of literature/reports in respect of the copyright and trademark
of the plaintiff's the production whereof could not cause any serious prejudice to the defendantappellant. The Court held that the defendant would have a right to cross-examine a witness and
raise objections to the admissibility of these documents at the trial. The following passage in
the order under challenge is in this regard apposite :
The documents at Sl. Nos. (i) to (iv) above are of the kind which can be allowed to
be produced since they are in the nature of public documents. So far as documents
at Sl. No. (v) above are concerned, even they can be allowed to be produced at this
stage. No serious prejudice would be caused to the defendant by the production of
any of these documents. The defendant would have his right to cross examine the
witness and raise his objection to the admissibility of these documents. In the
interest of justice, I grant leave to the plaintiff to produce the said documents
subject to any objections with regard to their admissibility, and the manner of proof
of the contents of the documents.
16. The grant of leave subject to the objections of the defendant with regard to the admissibility
and the mode of proof of contents of the document is a matter which is purely procedural in
nature and does not determine any right or obligation in the suit pending before the learned
single Judge. So also the objection regarding the need for legalization and apostilling of the
affidavit sworn by Shri Christian London has been correctly dealt with by the learned single
Judge who has, relying upon the "Convention Abolishing The Requirement of Legislation For
Foreign Public Documents", held that the Diplomatic or Consular Officers were empowered to
administer oath and to take any affidavit and also to do the notarial act which a Notary Public
may do in the State where the Diplomatic or Consular service is functioning. The documents
notarised by such officers were, Therefore, deemed to be validly notarized in India. The Court
has, in our opinion, rightly held that even though there might be no reciprocity between India
and another country under Section 14 of the Notaries Act, 1952, the notarial acts of the
Notaries in the foreign country could be given legal recognition by the courts and authorities in
India. That aspect is covered even by the decision of this Court in Rajesh Wadhwa v. Dr. (Mrs.)
Sushma Govil MANU/DE/0335/1988 : AIR1989Delhi144 .
17. Independent of what is indicated above, the learned single Judge was right in holding that
once the witness had appeared in the witness box and on oath solemnly affirmed the contents
of his affidavit which was tendered in evidence the procedural irregularity in the notarisation of
the affidavit had disappeared. All told, the second aspect of the controversy which the learned
single Judge has dealt with in the order is also in the nature of a procedural matter which does
not determine any part of the controversy in the suit either finally or at an interim stage.

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18. The grievance made by the appellant in regard to the levy of costs of Rs. 50000/- upon the
appellant would also not render the present appeal maintainable. The order passed by the
learned single Judge in that regard proceeds on a clear finding recorded against the appellant
that it was trying to create unjustified impediments in the progress of the suit with a view to
unduly protract the proceedings. Costs, it is well-settled are entirely in the discretion of the
Court, in as much as the learned single Judge had viewed rather seriously the attempts made
by the appellant in prolonging the proceedings and in creating unnecessary impediments in the
progress of the same. No part of the controversy in the suit was determined either finally or at
an interim stage so as to make the order appealable on that count.
19. The preliminary objection regarding the maintainability of the appeal, must Therefore
succeed and is accordingly upheld. Consequently, this appeal fails and is hereby dismissed with
costs of Rs. 15000/-.

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