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The Khurshed Bagh Co-operative Housing Society, Ltd., Lucknow Vs. Smt. Satya Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 743 of 1970
Judge
Reported inAIR1971All426
ActsCourt Rules, 1952 - Rule 5; High Court Rules; High Court Order
AppellantThe Khurshed Bagh Co-operative Housing Society, Ltd., Lucknow
RespondentSmt. Satya Devi and ors.
Appellant AdvocateM.P. Bajpai, Adv.
Respondent AdvocateR.M. Sahai and ;M.S. Srivastava, Advs.
DispositionAppeal allowed
Excerpt:
civil - judgment - rule 5 of chapter 8 of high court rules and orders, 1952 (allahabad) - application of a person for impleading as party - application rejected by single judge - order is appealable. - .....that it was a necessary party to the proceedings. that application was rejected by a learned single judge of the court by his order dated august 19, 1970. this appeal is directed against that order. 2. learned counsel for the respondents had raised a preliminary objection to the maintainability of the appeal. it is urged that in view of three division bench decisions of this court in gopal bihari kapur v. district magistrate of etah (1967 all lj 990); siaram v. nathuram, (1968 all lj 576) and radhey shyam v. state of u. p., 1970 all lj 735 = (air 1971 all 39), no special appeal lies to the high court against an interlocutory order passed by a single judge of the court. 3. on the other hand, it has been contended on behalf of the appellant that as the impugned order amounts to a.....
Judgment:

Tripathi, J.

1.The appellant is a Co-operative Housing Society registered under the U. P. Co-operative Societies ActNo. II of 1912. A small piece of land measuring about 19 biswas and 6 biswansi is being acquired by the State Government for the Society on the Lucknow-Kanpur road at a distance of four miles from the Charbagh railway station. The Society has already executed an agreement in favour of the State Government in accordance with the provisions of Section 39 of the Land Acquisition Act and has also made the necessary deposit. The validity of the acquisition proceedings which are still pending disposal before the appropriate authority was challenged by the respondents before the Lucknow Bench of this Court in Civil Misc. Writ No. 786 of 1970. The appellant Society was not made a party to the aforesaid writ petition. Accordingly the appellant Society applied for being impleaded as a party to the writ petition, inter alia, on the assertion that it was a necessary party to the proceedings. That application was rejected by a learned single Judge of the Court by his order dated August 19, 1970. This appeal is directed against that order.

2. Learned counsel for the respondents had raised a preliminary objection to the maintainability of the appeal. It is urged that in view of three Division Bench decisions of this Court in Gopal Bihari Kapur v. District Magistrate of Etah (1967 All LJ 990); Siaram v. Nathuram, (1968 All LJ 576) and Radhey Shyam v. State of U. P., 1970 All LJ 735 = (AIR 1971 All 39), no Special Appeal lies to the High Court against an interlocutory order passed by a single Judge of the Court.

3. On the other hand, it has been contended on behalf of the appellant that as the impugned order amounts to a case decided having finally disposed of the appellant's prayer for being impleaded as party to the writ petition it is a judgment.

4. The cases relied upon by the learned counsel for the respondents are distinguishable on facts. In Gopal Bihari's case, 1967 All LJ 990 mentioned above, the Division Bench was seized with a matter in which the petitioners application for an interim relief had been refused while his writ petition had remained pending. In that connection it was held that an order granting or vacating an interim order in a pending writ petition does not amount to a judgment and is, therefore, not appealable under Clause 10 of the Letters Patent or under Chapter VIII, Rule 5 of Rules of Court.

5. In Siaram's case, 1968 All LJ 576 a learned Single Judge of this Court hearing an election petition had passed an interlocutory order permitting inspection of the election papers. That order was challenged in Special Appeal. It was, inter alia, held that an interlocutory order may amount to a judgment if the order affects substantial rights of the parties. But in that case since no substantial rights of the parties were affected by the impugned interlocutory orderpermitting inspection of the election papers the order did not amount to a judgment as contemplated by Chapter VIII, Rule 5 of the Rules of Court and Clause 10 of the Letters Patent of the Allahabad High Court. It is, therefore, obvious that in all the Division Bench cases referred to above the Special Appeal was held not entertainable on the ground that the impugned orders were not judgments as they had not decided the matter finally. In other words the ratio decidendi in those cases was that if the impugned order amounts to a judgment having finally disposed of the matter in issue, a Special Appeal shall be entertainable. In Sia-rarn's case, 1968 All LJ 576 the learned Judges constituting the Division Bench, while referring to a Full Bench decision o this Court in Standard Glass Beads Factory v. Shri Dhar, AIR 1960 All 692 observed as follows:--

'The term 'judgment' does not necessarily exclude an order. An order of a Single Judge of the High Court dismissing an appeal against an order granting a temporary injunction is an order which finally determines the right of a party to a specific temporary relief. The order is therefore appealable. '

The learned Judges further observed that in the Full Bench case the impugned order finally disposed of the appeal which was pending before a Single Judge of the High Court. But that was not the position in Siaram's case, 1968 All Lj 576 as the impugned order therein did not dispose of the election petition pending before the learned Single Judge.

6. In Mata Prasad v. Ramadhar, AIR 1952 All 535, a Full Bench of this Court held that where in an appeal against an order returning a plaint under Order 7, Rule 10, the appellate court sets aside the order and remands the suit directing the trial court to readmit it to file, the order of the appellate court amounts to the decision of a case and is open to revision by the High Court.

7. Ghanshyamlalji v. Collector, Udaipur, AIR 1958 Raj 161 was a case dealing with an application for impleadment of a party in a suit under Section 92 of the Code of Civil Procedure. In that case a Division Bench of the Rajasthan High Court observed:

'One of the objects of Rule 10 of Order 1 is to enable the court to try and determine once for all material questions, common to the parties and to third parties and not merely questions between the parties to the suit.'

The Division Bench further observed:

'The plaintiff himself cannot enlarge the scope of the plaint beyond what the Advocate-General has sanctioned. But there is no limitation or exception contained in Rule 10 of Order 1, where a person seeks himself to be impleaded as a defendant ..

8. In the instant case the land is being acquired for the appellant and, as stated earlier, the appellant has already entered into an agreement with the State Government and has deposited the requisite imount in that regard. There can, therefore, be no doubt that the appellant Society is interested in the acquisition of the land and as such is a proper party within the meaning of Order 1, Rule 10, Sub-clause (2) inasmuch as its presence before the Court is necessary in order to enable it to effectually and completely adjudicate upon and settle all the questions involved in the proceeding. The rejection of the appellant's prayer for being impleaded as party by the learned Single Judge has finally determined the matter as against it. It is therefore a judgment which is appealable under Chapter VIII Rule 5 of the Rules of Court.

9. We have already held that the appellant is a proper party to the proceedings. Its impleadment as a party will not affect, in any manner, the interest of the respondents. On the other hand, it will facilitate the decision of the proceedings effectually and completely. In tnis view of the matter we are of opinion that the impugned order of the learned Single Judge is not sustainable.

10. In the result the appeal is allowed, the impugned order of the learned Single Judge is set aside and the appellant's application for impleadment as a party to the writ petition is allowed. Let the record of the case be sent back to the Lucknow Bench as expeditiously as possible.


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