Allahabad High Court
Raish Ahmad vs State Of U.P. And 17 Others on 18 January, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- SPECIAL APPEAL DEFECTIVE No. - 34 of 2020 Appellant :- Raish Ahmad Respondent :- State Of U.P. And 17 Others Counsel for Appellant :- Suresh Chandra Dwivedi,Sheikh Moazzam Inam Counsel for Respondent :- C.S.C.,Prabhakar Awasthi Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Suresh Chandra Dwivedi and Sri Sheikh Moazzam Inam, learned counsels for appellants, learned Standing Counsel for respondents 1 and 2, Sri Prabhakar Awasthi, learned counsel for respondents 3 to 18 and perused the record.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from order dated 08.03.2019 passed by learned Single Judge in Writ Petition No.8449 of 2019, whereby learned Single Judge after recording submission of counsel for petitioner has found the case worth consideration and given time to private respondents to file counter affidavit and has passed interim order staying operation of order impugned in the writ petition till the next date of listing.
3. When enquired from learned counsel for appellant as to how appeal is maintainable since appeal under Chapter VIII Rule 5 of the Rules, 1952 is maintainable against a judgment and not an interlocutory order, he could give no reply.
4. Appeal under chapter VIII Rule 5 is provided against judgment and not an interim order. While considering similar question in Special Appeal Defective No.1124 of 2007 (Usha Devi and others vs. State of U.P. and others) decided on 07.12.2007, this Court said :
"However, in our view, this appeal is not maintainable. The Hon'ble Single Judge while permitting the respondents to file counter affidavit has granted an interim order till the next date of listing. Neither the rights of the parties have been adjudicated finally nor any issue has been decided. When an order can be construed as a "judgment" whereagainst a special appeal under Chapter-VIII Rule 5 is maintainable has been considered repeatedly in catena of cases by this Court time and again. Earlier while Letters Patent appeal under Clause 15 was maintainable against the judgment of the Hon'ble Single Judge, the question as to when an "order" would be a "judgment" came up for consideration before a full Bench in the case of Shital Din and others Vs. Anant Ram, 1993 A.L.J. 127 (FB) and it held as under:-
".......on a reading of several clauses of the Letters Patent of the High Court we have come to the conclusion that a final decision, which effectually disposes of the appeal before the High Court, should amount to a judgment, whether it amounts to a decree or not."
The Apex Court in the case of Shah Babulal Khimji Vs. Jayaban D. Kania and another, AIR 1981 SC, 1786 while dealing with an appeal from a suit for specific performance of a contract considered the question as to whether under clause 15 of the Letters Patent, special appeal would be maintainable. In the said case the plaintiff sought an interim relief of appointment of a Receiver on the suit property during the pendency of the suit. The learned Single Judge dismissed the application seeking interim relief. The plaintiff filed special appeal under clause-15 of the Letter Patent, which was dismissed as not maintainable. The Apex Court while reversing the judgment of the appellate court, classified judgments in three categories:-
a) Final judgment
b) Preliminary judgment
c) Intermediary or interlocutory judgment.
It was also held by the Apex Court where a proceeding finally terminates after adjudication of all the issues or some of the issues the adjudication is a judgment. The adjudication is also a judgment, even though it does not result in termination of proceedings, if it possesses the characteristics and trappings of a judgment. An order may possess such characteristics and trappings when the order adversely affects a valuable right of the party by deciding an important aspect of the trial in an ancillary proceeding.
The Apex Court in para-119 at page-1817 also held as under:
"(1 ) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders 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.
(2) 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."
In the case of State of U.P Vs. Kumari Renu Tiwari,1993(2) UPLBEC,1325 the following propositions were laid down:
"(1) When the term "judgment" is used in a Statute or rule linked with the term "decree" as defined in the Code of Civil Procedure, it will have a restricted and narrow meaning but when it is not so linked, it will have a wider connotation;
(2) ordinarily for an adjudication to be a "judgment" it should bring about termination of the proceeding in which the adjudication is made; and (3) an order passed on an application for interim relief is ordinarily not a "judgment" but it will qualify to be called ''judgment' if it affects valuable right of the party or decides an important aspect of the trial and the effect of the order on the party concerned is direct and immediate rather than indirect and remote"
We have also followed and taken the same view in Special Appeal No. 1247 of 2005, Musafir Singh Vs. Shiv Ram Yadav and others decided on 20.10.2005. A similar contention has also been dispelled by this Court in Special Appeal No. 1288 of 2006 Rajendra Singh Bhadauriya Vs. Committee of Management & others decided on 6.11.2006. Moreover, after perusing the relief sought by petitioner-respondent no. 5, we are not convinced that the interim order passed by the Hon'ble Single Judge can be treated to have granted any final relief to the petitioner-respondent no. 5."
5. Learned counsel for petitioner contended that order under appeal amounts to grant of final relief, but, we have gone through the writ petition and find that following final relief has been sought in the writ petition :
"i. Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and to quash the impugned order dated 12.02.2019 passed by the Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur (Annexure No.13 to the writ petition);
ii. Issue a writ, order or direction in the nature of Mandamus commanding the Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur to forthwith made fresh adjudication in relation to Electoral College after according opportunity of hearing to the petitioner strictly in compliance of the order dated 17.04.2017 passed by this Hon'ble Court in Writ Petition No.27038 of 2016, Writ Petition No.43037 of 2016 and Writ Petition No.6886 of 2017 within stipulated period of time.
iii. Issue a writ, order or direction in the nature of Mandamus commanding the Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur to forthwith hold election in terms of Section 25(2) of the Societies Registration Act, 1860 after making fresh adjudication of Electoral College in terms of Section 4-B of the Societies Registration Act, 1860."
6. The interim order nowhere shows that any of final reliefs sought in writ petition has been granted, therefore, it cannot be said that interim order under appeal has resulted in grant of final relief to petitioners-respondents and therefore, it cannot be read as a judgment.
7. No other point has been argued.
8. Appeal is not maintainable. Dismissed.
Order Date :- 18.1.2020 KA Court No. - 34 Case :- SPECIAL APPEAL DEFECTIVE No. - 34 of 2020 Appellant :- Raish Ahmad Respondent :- State Of U.P. And 17 Others Counsel for Appellant :- Suresh Chandra Dwivedi,Sheikh Moazzam Inam Counsel for Respondent :- C.S.C.,Prabhakar Awasthi Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
Civil Misc. Delay Condonation Application No.1 of 2020
1. Sri S.C.Dwivedi and Sri Sheikh Moazzam Inam, learned counsels for applicant-appellant and Sri Prabhakar Awasthi, learned counsel for respondents 3 to 18.
2. This is an application seeking condonation of delay of 256 days in filing intra Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952"). Learned counsel for respondents stated that he does not propose to file objection to the delay condonation application and the Court may look into the cause and pass appropriate order.
3. Cause shown is sufficient.
4. Delay in filing appeal is hereby condoned.
5. This application, accordingly, stands allowed.
6. Let appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number.
Order Date :- 18.1.2020 KA