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ikram Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 156 of 1979
Judge
Reported inAIR1980Raj182; 1979()WLN727
ActsRajasthan High Court Ordinance, 1949
Appellantikram
RespondentUnion of India (Uoi) and ors.
Appellant Advocate M.L. Shrimali, Adv.
Respondent Advocate L.R. Bhansali, Adv.
DispositionAppeal dismissed
Cases ReferredRadhey Shaym v. State of U. P.
Excerpt:
rajasthan high court ordinance, 1949 - clause 18 appeal--maintainability of--order vacating exparte stay--held, no rights of parties are determined and it is not a 'judgment'--appeal is not maintainable.;no rights of the parties helve been decided by the impugned interim order dated nov. 2, 1979 vacating the exparte stay order dated february 26, 1979, nor any points of controversy between the parties have been determined.;the impugned order does not determine any rights of the parties nor determines any points of controversy and as such we are clear in our minds that it does not amount to a 'judgment'.;this appeal is not maintainable.;appeal dismissed - .....bhansali has relied on state v. hindo open sugar mills, 1973 raj lw 633 : (air 1974 raj 110).2. learned counsel for the appellant while frankly conceding that the view taken in hindo open sugar mills' case (supra) is against him, submitted that the point requires reconsideration in view of authorities of other high courts. consequently, we have heard learned counsel for the parties at some length.3. for a correct appraisal of the contention raised by the learned counsel for the appellant it would be proper to state a few facts giving rise to this appeal. the appellant's case as set out in the writ petition is that he was holding the post of motor trolly fitter under the assistant public works inspector, northern railway, bikaner. it is alleged that by an order dated october 24, 1978.....
Judgment:

Lodha, C.J.

1. This special appeal under Clause 18 of the Rajasthan High Court Ordinance, 1949 is directed against an interlocutory order dated Nov. 2, 1979 arising out of S. B. Civil Writ Petition No. 466 of 1979 : When this appeal came up for admission, the Court directed the issue of notice to the respondents to show cause why the special appeal be not admitted, In response to the notice Mr. L.R. Bhansali has appeared on behalf of the respondents, and has raised a preliminary objection regarding the maintainability of the appeal. It has been urged by him that the appeal is directed against an interim order vacating an ex parte stay granted earlier which does not fall within the ambit of the term 'Judgment' occurring in Clause 18 of the Ordinance. In support of his contention Mr. Bhansali has relied on State v. Hindo Open Sugar Mills, 1973 Raj LW 633 : (AIR 1974 Raj 110).

2. Learned counsel for the appellant while frankly conceding that the view taken in Hindo Open Sugar Mills' case (supra) is against him, submitted that the point requires reconsideration in view of authorities of other High Courts. Consequently, we have heard learned counsel for the parties at some length.

3. For a correct appraisal of the contention raised by the learned counsel for the appellant it would be proper to state a few facts giving rise to this appeal. The appellant's case as set out in the writ petition is that he was holding the post of Motor Trolly Fitter under the Assistant Public Works Inspector, Northern Railway, Bikaner. It is alleged that by an order dated October 24, 1978 the appellant was ordered to be reverted to the post of hammer-man, but by a subsequent order dated Dec. 15, 1978 he was directed to continue on temporary labour application basis as a pipe-fitter. Thereupon the appellant filed a writ petition (S. B. Civil Writ Petition No. 44 of 1979) challenging the order of his reversion dated Oct. 24, 1978, wherein an order for maintaining status quo was passed in his favour. But when the opposite party placed before the Court the subsequent order dated Dec. 15, 1978 posting him as a Pipe-Fitter, the appellant withdrew the writ petition, and filed the present writ petition out of which this appeal arises. In this writ application too he filed an application on Feb. 23, 1979 (No. 202 of 1979) praying that a direction may be issued to the opposite parties to maintain status quo till the decision of the writ petition. The learned single Judge by his order dated February 26, 1979 directed that status quo may be maintained as existing on that day. On Sept. 5, 1979 the appellant submitted a second stay application (No. 937 of 1979) in which it was prayed that the non-petitioners may be restrained from making appointment in the post of Motor-Trolly-Fitter. Both the stay applications came up for final orders on Nov. 2, 1979. On stay application No. 937 of 1979, the learned Judge directed that one post of Motor Trolly Fitter-cum-Driver shall not be filled until the decision of the writ petition, whereas on the earlier stay application No. 202 of 1979 the learned Judge vacated the ad interim stay order passed on February 26, 1979, against which this appeal has been preferred.

4. We have purposely given above a short narrative of the proceedings in order to show that no rights of the parties have been decided by the impugned interim order dated November 2, 1979 vacating the ex parte stay order dated Feb. 26, 1979, nor any points of controversy between the parties have been determined. It appears to us, as has been submitted by the learned counsel for the respondents that in the counter filed by the non-petitioner to the writ petition, it was pleaded inter alia that the petitioner had already been transferred as Pipe-Fitter on Dec. 15, 1978, and, therefore, there was no question of his being continued as a Motor-Trolly Fitter in pursuance of the order of the Court which only directed that status quo may be maintained. Affidavit of one Mr. Bava Singn, Assistant Engineer, Northern Railway, Bikaner has been filed in support of the counter. Mr. Lakhpat Raj urges that it is on account of the aforesaid submission in the counter filed by his clients that the impugned order vacating the stay was passed.

5. Now reverting to the preliminary objection it was held in Hindo Open Sugar Mills' case (supra) that an interlocutory order staying the operation of the impugned notifications on certain conditions till final decision is not a judgment and as such not appealable under Clause 18 of the High Court Ordinance.

6. Mr. Shrimali, learned counsel for the appellant, however, took pains to argue that the word 'judgment' as used in Clause 18 of the High Court Ordinance must be given a wider interpretation. In this connection he has referred to Tuljaram Row v. Algappa Chettiar, (1912) ILR 35 Mad 1, S. G. Beads Factory v. Shri Dhar, AIR 1960 All 692 (FB) and Manohar v. Baliram AIR 1952 Nag 357 (FB).

7. It is true that in the decisions referred to by the learned counsel the word 'judgment' has been held to include final judgment, preliminary judgment and interlocutory judgment. But there seems to be a consensus of opinion among all the High Courts that an order in order to be appealed from as an interlocutory judgment must decide some points of controversy between the parties, though there is a difference of opinion on the interpretation of the term 'judgment' as used in Letters Patent.

8. The case law on the point has been discussed in great detail by Hidayatullah J., as he then was in Manohar v. Baliram (supra). But we do not feel inclined to enter into the controversy regarding the interpretation of the term 'judgment'. Suffice it to say that the impugned order does not determine any rights of the parties nor determines any points of controversy and as such we are clear in our minds that it does not amount to a 'judgment'. So far as Allahabad High Court is concerned, we may make reference to a later decision of that Court, reported as Radhey Shaym v. State of U. P. AIR 1971 All 39, wherein the learned Judges distinguished the earlier cases of that Court relied upon by the learned counsel for the appellant on the ground that in those cases the impugned order was a decision by a single Judge finally disposing of the proceedings before him. The facts of Radhey Shaym's case (supra) are similar to those of the case on hand. In that case also previous stay orders were vacated by the impugned order which was appealed from and the learned Judges observed as follows :

'The situation in the instant case is different. The impugned order dated 31-3-1970 does not dispose of the writ petition. The writ petition is still pending before the single Judge. The impugned order is an interlocutory order.

Thus the settled view of this Court is that interlocutory order of this type is not appealable under Chap. VIII, Rule 5 of the Rules of Court. Since the appeal is not maintainable, it is not necessary to enter into the merits of the appeal.'

9. Suffice it to say that we do not at all feel persuaded to reconsider the view taken by this Court in Hindo Open Sugar Mills' case (supra),

10. The result is that we see force in the preliminary objection and hold that this appeal is not maintainable. We may also state that we have looked at the matter from the point of view of merit in the appeal and find no substance in that either. The appeal is, therefore dismissed. No orders as to costs.


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