Allahabad High Court
John Augustine vs C/M, St. Mark School Society And 4 Others on 24 February, 2020
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- SPECIAL APPEAL No. - 172 of 2020 Appellant :- John Augustine Respondent :- C/M, St. Mark School Society And 4 Others Counsel for Appellant :- Udai Chandani,Deepak Kumar Counsel for Respondent :- C.S.C.,Hritudhwaj Pratap Sahi,Sankalp Narain Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Anoop Trivedi, Senior Advocate, assisted by Sri Udai Chandani, learned counsel for respondent-appellant, Sri G.K.Singh, Senior Advocate, assisted by Sri Sankalp Narain and Prabhakar Awasthi, Advocates, learned counsel for respondents 1 to 3 and perused record.
2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has been filed assailing interim orders dated 06.02.2020 and 07.02.2020 passed in Writ Petition No.4092 of 2020 (C/M St. Marks School Society and 2 others vs. State of U.P. & 2 others), which read as under:
(i) Order dated 07.02.2020 "This petition is directed against an order passed by the Assistant Registrar, Firms, Societies and Chits dated 29.1.2020 which cancels the modified bye-laws registered in the year 2011 and also calls upon the office bearers to submit renewal papers and the complainant has been given an opportunity to submit documents for registration of its office bearers. Submission is that this order is absolutely without jurisdiction inasmuch as upon a complaint with regard to incorrect registration of bye-laws, a direction cannot be issued by the Assistant Registrar to the complainant to submit his list of office bearers to be registered.
Learned counsel for the respondents seeks a day's time to examine the matter and to respond it.
Put up tomorrow i.e. on 7.2.2020 as fresh."
(ii) Order dated 07.02.2020 "Short counter affidavit and supplementary affidavit filed today are taken on record.
Parties may exchange affidavits within four weeks from today.
List in the week commencing 23rd March, 2020.
Interim order granted earlier shall continue till the next date of listing.
Till then, effect and operation of the order dated 29.1.2020 shall be kept in abeyance."
3. Learned Senior Counsel appearing for appellants contended that final relief by way of interim relief has been granted. However, we find that in the writ petition final relief is that impugned order dated 29.01.2020 be quashed while by way of interim order, Court has stayed its operation and has not set aside the same. Difference between "stay of an order" and "quahsing of an order" has been explained by Supreme Court in Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1 as under:
"Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence."
(Emphasis added)
4. Therefore, it cannot be said that final relief in the writ petition has been granted by learned Single Judge way of interim order.
5. It is next contended that appellants submitted relevant documents before learned Single Judge but that have not been examined and in a mechanical way, interim order has been passed vide order dated 07.2.2020.
6. We find that on that date appellant filed a short counter affidavit and petitioner-respondents filed supplementary affidavit. Consequently, petitioner-respondents were entitled to file supplementary rejoinder affidavit in reply to short counter affidavit and respondents in the writ petition were entitled to file reply to supplementary affidavit. It is not the case of appellant that he requested learned Single Judge to examine the matter on merits and appellant do not propose to rely on short counter affidavit and also do not propose to file any reply to the supplementary affidavit. Since, learned Single Judge granted time to the parties to exchange affidavits and fixed date, it was obvious that interim order passed on 6.2.2020 has to be extended and there was no occasion to pass order on merits. Hence it cannot be said that learned Single Judge has committed any error in not examining matter on merits since pleadings were yet to be exchanged. Hence, second contention also has no force.
7. Further, we are of the view that aforesaid two orders cannot said to be a 'judgment' therefore appeal under Chapter VIII Rule 5 of Rules, 1952 is not maintainable since appeal lie against 'judgment' and not 'interim order'.
8. 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."
9. In view of above discussion, we find no merit in this appeal. It is accordingly dismissed.
Order Date :- 24.2.2020 KA