Gujarat High Court
Nikunj Dolatbhai Ahir vs Joint Charity Commissioner, Surat ... on 19 September, 2024
NEUTRAL CITATION
C/FA/3112/2024 ORDER DATED: 19/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3112 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 3112 of 2024
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NIKUNJ DOLATBHAI AHIR & ORS.
Versus
JOINT CHARITY COMMISSIONER, SURAT DIVISION, SURAT & ORS.
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Appearance:
MR SUDHIR NANAVATI, SR COUNSEL assisted by MS. NIYATI K
JUTHANI(7014) for the Appellant(s) No. 1,2,3,4,5
MR VISHAL T. PATEL(6518) for the Defendant(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 19/09/2024
ORAL ORDER
1. Heard learned Senior Counsel Mr. Sudhir Nanavati assisted by learned advocate Ms. Niyati Juthani for the appellants and learned advocate Mr. Vishal T. Patel for the respondents. Perused the record.
2. At the outset, learned advocate for the respondent has raised a preliminary contention regarding maintainability of First Appeal against the order passed by the learned Additional District & Sessions Judge, Surat in Misc. Civil Application No.135 of 2024 on 23.8.2024 below Exh.5 injunction application.
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3. With the consent of both the parties, the issue of maintainability or non-maintainability of First Appeal is taken up for hearing.
4. Learned advocate for the respondent submitted that the challenge in the first appeal is against an order passed below Exh.5 i.e. injunction application, is not a "decision" rendered by the learned District Court and hence appeal as contemplated under sub section (4) of Section 72 of the Bombay Public Trust Act, 1950 is not maintainable. He has, therefore, relied upon sub section (1) of Section 72, sub section (2) of Section 72 and sub section (4) of Section 72 which are reproduced hereunder:
Section 72: Application from Charity Commissioner's decision under Section 40 (41, 50A, 70 or 70A):
"72. (1) Any person aggrieved by the decision of the Charity Commissioner under section 40, 41, 153[50A], 154[70 or 70A] or on the questions 155[whether a trust exists and whether such trust is a public trust] or whether any property is the property of such trust 156**may, within sixty days from the date of the decision, apply to the court to set aside the said decision.
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(2) The Court after taking 159[evidence if any,] may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances.
(3) xxxx (4) An appeal shall lie to the High Court against the decision of the court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies.
[Explanation.-In this section, the expression "decision" shall include a scheme framed or modified under section 50A.]"
5. It is submitted that any person aggrieved by the decision of the Charity Commissioner u/S.50A of the Gujarat Public Trust Act, 1950 may within sixty days from the date of decision apply to the Court to set aside the decision. The Court after taking evidence, if any, may confirm, revoke or modify the decision.
Once the decision of the Court under sub section 2 of Section 72 is passed, an appeal shall lie to the High Court as if such decision was a decree from which an appeal ordinarily lies. In the present case, the appellants have challenged the order below Exh.5 Page 3 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined injunction application which is not a decree passed by the Court.
6. Learned advocate for the respondent has referred section 2(2) of the Code of Civil Procedure which defines "decree".
2. Definitions: In this Act, unless there is anything repugnant in the subject or context,-
"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [* * *] section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final"
7. It is submitted that there is no adjudication of the dispute whereby a conclusive determination of the rights of the parties are decided by learned District Page 4 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined Court while deciding Exh.5 injunction application. It is therefore submitted that the order passed by the learned District Court is not a decree as defined under the Code and therefore no appeal is maintainable as contemplated under sub section (4) of Section 72 of the Trust Act.
8. Learned advocate for the respondent has further placed reliance upon the definition of `Order" as contemplated under sub section 14 of Section 2 of the Code which is reproduced hereunder:
14. "order"
"order" means the formal expression of any decision of a Civil Court which is not a decree;
9. The definition of order, as per the submission of learned advocate for the respondent is clear and unambiguous and when there is a formal expression of any decision of a Court, it would not be termed as a decree.
10. Learned advocate for the respondent has placed Page 5 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined reliance upon following decisions to substantiate the submissions that the order of the learned District Judge is not a decree and the First Appeal is not maintainable.
(1) Tirumalachetti Rajaram Versus Tirumalachetti Radhakrishnayya Chetty and Others reported in 1961 SCC OnLine SC 61.
(2) Smt. Nand Kantaben Janubhai Yodh (dead) by L.Rs v. Dipsinh Gambhirsinh Thakor and others reported in 2002 AIR SCW 2743.
(3) Deep Chand and Others versus Land Acquisition Officer and Others reported in (1994) Supreme Court Cases 99.
(4) S. Satnam Singh and Ors V. Surender Kaur and Anr reported in AIR 2009 Supreme Court 1089 & (5) V. C. Shukla Versus State through C.B.I. reported in 1980 Supp Supreme Court Cases 92.
11. Per contra, learned Senior Advocate Mr. Sudhir Nanavati for the appellant submitted that the provisions contained in the Gujarat Public Trust Act, 1950 is a special enactment and therefore the provisions contained in the Code of Civil Procedure would not be applicable. The provisions of the Code would only be applicable to the cases falling under Page 6 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined the provisions of the Trust Act to conduct the proceedings and to regulate the proceedings before the learned Charity Commissioner. It is further submitted that under sub section (4) of Section 72, an appeal would lie to this Court against the decision of the Code under sub section (2) of Section 72.
12. Learned Senior Advocate further contended that the order of the Joint Charity Commissioner, Surat framing the scheme, was assailed by present respondent Nos.3 and 4 by way of Misc. Civil Application under Section 72 of the Trust Act. An application for stay Exh.5 was submitted wherein a relief of stay of the order dated 20.7.2024 was sought for. The learned District Judge granted Exh.5 by staying the operation of the order of Joint Charity Commissioner, Surat passed in scheme no.9 of 2012 dated 20.7.2024. The said order being a decree was assailed by the appellants who are original opponent Nos.3 to 7 by way of present appeal.Page 7 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024
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13. It is submitted that when the opponent Nos.3 and 4 assailed the decision of Joint Charity Commissioner before the learned District Court by filing an appeal under sub section (1) of Section 72, any decision passed under the provisions of Section 72 of the Act would be appealable decisions and the appeal would lie before this Court.
14. I have heard learned advocates for the parties and considered the material placed on record.
Undisputedly, the challenge in the First Appeal is against the order passed below Exhibit-5 which is an interim injunction application. The learned District Court vide order dated 23.08.2024 allowed Exhibit-5 application and the order dated 28.07.2024 passed by the learned In-charge Joint Charity Commissioner, Surat under Scheme No.9 of 2012 was stayed. On perusal of the impugned order, it has been observed by the learned District Court that after inspecting the Page 8 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined record and proceedings of Scheme Application and after giving full opportunities to both the sides, it would be appropriate to decide the question involved in the appeal. It is a settled principle of law that the findings, while deciding interim injunction application, are tentative findings and the order passed below Exhibit-5 can never be termed as 'decree'. The term 'decree' has been defined in the Code of Civil Procedure, 1908. Decree means formal expression of an adjudication conclusively determines the rights of the parties with regard to all or any of the matters in controversy. In the present case, there is no final adjudication of the matter in controversy. The main appeal is pending for its adjudication.
15. The word 'order' is also defined in the Code, which means a formal expression of any decision of a Court which is not a decree. Even as per the averments and grounds mentioned in the First Appeal, the Page 9 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined appellants are not coming out with the submission that the order passed by the learned District Judge amounts to a decree.
16. To invoke the provisions of Sub-Section 4 of Section 72 of the Gujarat Public Trust Act, 1950, the decision has to be a decree and only in the case where decree is passed by the Court, appeal would lie to the High Court. Sub-Section 2 of Section 72 of the Gujarat Public Trust Act, 1950 contemplates that the Court after taking evidence, if any, may confirm, revoke or modify the decision. In the present case, the learned District Court has neither confirmed, revoked nor modified the decision of the learned In-charge Joint Charity Commissioner. The order dated 23.08.2024 is not the final adjudication of the controversy prevailing between the parties.
17. In the case of Tirumalachetti Rajaram (supra), in paragraph 7, the Hon'ble Apex Court has observed, Page 10 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined which is as under;
"7. The next question to consider is : what is the denotation of the word "decision" used in the said clause. The argument for the respondent is that the word "decision" does not mean the whole of the decision but the decision on that part of the controversy between the parties which is brought to this Court in appeal. In support of the argument that the decision does not mean the entire decision of the trial court reliance is placed on the provisions of O. 20, rr. 4 and 5. Rule 4 of O. 20 deals with the judgments of Small Cause Courts and judgments of other Courts, and it provides that the judgments falling under the first clause need not contain more than the points for determination and decision thereon, whereas the judgments falling under the latter class should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. There is not doubt that the decision in the context means the decision on the points for determination. That of course is the meaning of the word "decision", but whether or not the word "decision" means the decision on one point or the decision of whole suit comprising of all the points in dispute between the parties must inevitably depend upon the context, and the context is plainly inconsistent with the argument that the decision should mean the decision on a specific point. If the word "decree" in the first part of the relevant clause means not a part of the decree but the whole of the decree then it would be reasonable to hold that the word "decision" must likewise mean the entire decision of the trial court and not a part of it."
18. In the case of Smt. Nand Kantaben Janubhai Yodh (dead) by L.Rs (supra), in paragraph 2, in which, the Hon'ble Apex Court has observed, which is as under;
Page 11 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined "2. The findings recorded by the Joint Charity Commissioner on preliminary issues were in the negative and the matter ended at that stage. Against that order of the Joint Charity Commissioner, the appellant preferred an application under S.72 of the Bombay Public Trust Act before City Civil Judge. The City Civil Judge took the view that there is effective disposal of the matter by the Joint Charity Commissioner and having not exercised his jurisdiction under S.70(A) of the Act, question of examining the matter under S.72(1) of the Act would not arise. Against that order a writ petition was filed in the High Court and the same was dismissed at the admission stage. Hence this appeal."
19. In the case of Deep Chand and Others (supra), in paragraph No.5, the Hon'ble Apex Court has observed, which is as under;
"5. The question, therefore, is whether the decision by the civil court on a reference under Section 49(1), second proviso of the Act is a decree within the meaning of Section 2(2) of CPC. There can be no doubt that where a legal right of a party to a dispute, has to be adjudicated by courts of ordinary civil jurisdiction ordinary rules of civil procedure become applicable, and an appeal lies, if not otherwise provided for by such rules, that is to say, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer right of appeal an appeal lies. Decree means a formal expression of an adjudication which the court conclusively and finally determines the rights of the parties with regard to all or any of the matters in controversy in the suit. We need not decide whether a reference under Section 49(1) is a suit. However, the immediate question that arises is whether the objection raised for acquisition on the premise that the property proposed for acquisition is a part only of the house, manufactory or building is decided, does it amount to an adjudication. In Black's Law Dictionary (6th Edn.) at p. 42 Page 12 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined "adjudication" is defined as :
"Adjudication.- The legal process of resolving a dispute. The formal giving or pronouncing a judgment or decree in a court proceeding; also the judgment or decision given. The entry of a decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice, of legal evidence on the factual issue(s) involved."
20. In the case of S. Satnam Singh and Ors (supra), in which, the Hon'ble Apex Court has observed in paragraph Nos.14 and 15, which are as under;-
"14. A `decree' is defined in Section 2(2) of the Code of Civil Procedure to mean the formal expression of an adjudication which, so far as regards, the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It may either be preliminary or final. It may partly be preliminary and partly be final. The court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading upto the passing of an order. The circumstances under which an order had been made would also be relevant.
15. For determining the question as to whether an order passed by a court is a decree or not, it must satisfy the following tests :
"(i) There must be an adjudication;
(ii) Such adjudication must have been given in a suit;
(iii) It must have determined the rights of the parties with regard to all or any of the matters Page 13 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined in controversy in the suit;
(iv) Such determination must be of a conclusive nature; and
(v) There must be a formal expression of such adjudication."
21. In the case of V. C. Shukla (supra), in paragraph Nos, 23, 24 and 34, the Hon'ble Apex Court has observed, which is as under;
"23. We entirely agree with the approach indicated by Sastri, C.J. and which is also binding on us. Let us see what is the effect of interpreting the non obstante clause according to the test laid down by the decision, referred to above, and particularly the observations of Sastri C. J. Let us for the time being forget the provisions of s. 397(2) of the Code or the- interpretation put by this Court on the term 'interlocutory order' as appearing in the Code because the decisions were based purely on the interpretation of the provisions of the Code. We have, therefore, first to determine the natural meaning of the expression interlocutory order'. To begin with, in order to construe the term 'interlocutory', it has to be construed in contra- distinction to or in contrast with a final order. We are fortified by a passage appearing in The Supreme Court Practice, 1976 (Vol. I p. 853) where it is said that an interlocutory order is to be contrasted with a final order, referring to the decision of Salaman v. Warner. In other words, the words 'not a final order' must necessarily mean an interlocutory order or an intermediate order. That this is so was pointed out by Untwalia J, speaking for the Court in the case of Madhu Limaye v. State of Maharashtra, (supra) as follows:
"Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'."Page 14 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024
NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined Thus, the expression 'interlocutory order' is to be understood and taken to mean converse of the term 'final order'. Now, let us see how this term has been defined in the Dictionaries and the text books. In Webster's Third International Dictionary (Vol. II, p. 1170) the expression 'interlocutory order' has been defined thus:
"Not final or definitive; made or done during the progress of an action; INTERMEDIATE PROVISIONAL".
Stroud's Judicial Dictionary (Fourth Edition, Vol. 3, p. 1410) defines the interlocutory order thus: -
" 'Interlocutory order' (Judicature Act 1873 (c.66), s. 25(8) was not confined to an order made between writ and final judgment, but means an order other than final judgment."
Thus, according to Stroud, interlocutory order means an order other than a final judgment. This was the view taken in the case of Smith v. Cowell and followed in Manchester & Liverpool Bank v. Parkinson. Similarly, the term 'final order' has been defined in volume 2 of the same Dictionary (p. 1037) thus:
"The judgment of a Divisional Court on an appeal from a county court in an interpleader issue, was a 'final order" within the old R.S., Ord. 58, r. 3 (Hughes v. Little, 18 Q.B.D. 32); so was an order on further consideration (Cummins v. Herron, 4 Ch. D.
787); unless action was not thereby concluded.. But an order under the old R.S.C., ord. 25, r. 3, dismissing an action on a point of law raised by the pleadings was not 'final"
within the old Ord. 58, r. 3, because had the decisions been the other way the action would have proceeded."
Halsbury's Laws of England (Third Edition, Vol. 22, pp. 743-
744) describes an interlocutory or final order Page 15 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined thus:
"Interlocutory judgment or order: An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed 'interlocutory'. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.....
In general a judgment or order which determines the principal matter in question is termed 'final'."
At page 743 of the same volume, Blackstone says thus:
"Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for................. Four different tests for ascertaining the finality of a judgment or order have been suggested:
(1) Was the order made upon an application such that a decision in favour of either party would determine the main dispute? (2) Was it made upon an application upon which the main dispute could have been decided? (3) Does the order, as made, determine the dispute? (4) If the order in question is reversed, would the action have to go on."
Corpus Juris Secundum (Vol. 49 p. 35) defines interlocutory order thus:
"A final judgment is one which disposes of the cause both as to the subject matter and the parties as far as the court has power to dispose of it, while an interlocutory judgment is one which reserves or leaves some further question or direction for future determination ........ Generally, however, a Page 16 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined final judgment is one which disposes of the cause both as to the subject matter and the parties as far as the court has power to dispose of it, while an interlocutory judgment is one which does not so dispose of the cause, but reserves or leaves some further question or direction for future determination..... .. The term "interlocutory judgment" is, however, a convenient one to indicate the determination of steps or proceedings in a cause preliminary to final judgment, and in such sense the term is in constant and general use even in code states."
(Emphasis ours) Similarly, Volume 60 of the same series at page 7 seeks to draw a: distinction between an interlocutory and a final order thus:
"The word "interlocutory", as applied to rulings and orders by the trial court, has been variously defined. It refers to all orders, rulings, and decisions made by the trial court from the inception of an action to its final determination. It means, not that which decides the cause, but that which only settles some intervening matter relating to the cause. An interlocutory order is an order entered pending a cause deciding some point or matter essential to the progress of the suit and collateral to the issues formed by the pleadings and not a final decision or judgment on the matter in issue .. An intermediate order has been defined as one made between the commencement of an action and the entry of the judgment."
24. To sum up, the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter. in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia J. in the case of Madhu Limaye v. State of Maharashtra(supra) clearly meant to Page 17 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined convey that an order framing charge is not an interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find ourselves in complete agreement with the observations made in Corpus Juris Secundum. It is obvious that an order framing of the charge being an intermediate order falls squarely with in the ordinary and natural meaning of the term 'interlocutory order'. as used in s. 11(1) of the Act. Wharton's Law Lexicon (14th Edition, p. 529) defines interlocutory order thus:
"An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding, suit or trial but which does not however conclude the trial A at all. This would be the result if the term interlocutory order is interpreted in its natural and logical sense without having resort to Criminal Procedure Codeor any other statute. 'I hat is to say, if we construe interlocutory order in ordinary parlance it would indicate the attributes, mentioned above, and this is what the term interlocutory order means when used in s. 11(1)of the Act.
34. There is yet another aspect of the matter which has to be concerned so far as this decision is considered, to which we shall advert when we t deal] with the last plank of the argument of the learned counsel for the appellant. Suffice it to say at the moment that the case referred to also fully endorses the view taken by the Federal Court and Page 18 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024 NEUTRAL CITATION C/FA/3112/2024 ORDER DATED: 19/09/2024 undefined the English decisions, viz., that an order is not a final but all interlocutory one if it does not determine or decide the rights of parties once for all. Thus, on a consideration of the authorities, mentioned above, the. following proposition emerge:-
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order; (2) that the concept of interlocutory order has to be ex plained. in contradistinction to a final order. In other words, if an order is not a final order, it would be an interlocutory order; (3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order. framing charges, the Act works serious injustice to the accused."Page 19 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024
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22. Thus, keeping in mind the aforesaid decisions interpreting the meaning decree and interlocutory orders, I am of the view that the impugned order is not a decree as there is no final adjudication of the controversy and the findings recorded by the learned District Judge are tentative in nature. The present First Appeal is outside the scope of Sub-Section 4 of Section 72 Gujarat Public Trusts Act, 1950. Hence, the present First Appeal is not maintainable.
Therefore, it is dismissed. No order as to costs.
However, the appellant may exhaust other efficacious remedy permissible under the law.
23. In view of dismissal of the main matter, connected Civil Application will no longer survive. Hence, the same stands disposed of.
(D. M. DESAI,J) VATSAL Page 20 of 20 Uploaded by VATSAL S. KOTECHA(HC00352) on Sat Sep 21 2024 Downloaded on : Mon Sep 23 20:45:50 IST 2024