Dismissed

Dharmendra Kumar v. State of U.P. and 4 Others

Allahabad HC30 Jul 2019SPLA/807/2019

Case brief

AI extract

What is this about?

This intra-court appeal challenged the maintainability of an appeal against an interim order granting stay. The Bench held that special appeals are maintainable only against judgments, not interim orders, unless the order finally disposes of an important aspect of the trial affecting valuable rights of a party.

What did the court decide?

Special Appeal No. 807 of 2019 was dismissed as not maintainable against an interim order.

Dharmendra Kumar Vs State of U.P. and 4… — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL No. - 807 of 2019

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Appellant :- Dharmendra Kumar Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Krishna Mohan Asthana Counsel for Respondent :- C.S.C., Chandan Sharma, Harish Chandra Dubey

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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Sri Ashok Khare, learned Senior Advocate assisted by Sri Krishan Mohan Asthana and Sri P.N. Ojha, learned counsel for appellant and Sri R.K. Ojha, learned Senior Advocate assisted by Sri Harish Chandra Dubey for petitioner-respondents.

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This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as “Rules, 1952”) has arisen from judgment and order dated 02.07.2019 passed by learned Single Judge in Civil Misc. Writ Petition No. 18741 of 2019 staying operation of order dated 01.05.2019.

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Learned Senior Counsel appearing for appellant contended that no reason has been recorded by learned Single Judge in granting interim relief to petitioner but we find that noticing the contention by learned Single Judge has recorded its finding by mentioning the words "matter needs consideration" and this is a sufficient way of recording satisfaction by learned Single Judge that contention advanced by learned counsel for petitioner have prima facie substance and same required consideration.

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It is next contended that interim order amounts to final relief to petitioner but we find that final relief was for setting aside order dated 01.05.2019 but by means of impugned order, only operation is stayed.

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Special appeal under Chapter VIII Rule 5 lies against judgment and not against 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 :

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“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:-

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".......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."

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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,

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classified judgments in three categories:-

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a) Final judgment

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b) Preliminary judgment

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c) Intermediary or interlocutory judgment.

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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.

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The Apex Court in para-119 at page-1817 also held as under:

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"(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.

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(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."

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In the case of State of U.P Vs. Kumari Renu Tiwari,1993(2) UPLBEC,1325 the following propositions

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were laid down:

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"(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;

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(2) ordinarily for an adjudication to be a "judgment" it should bring about termination of the proceeding in which the adjudication is made; and

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(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"

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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.”

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In view thereof, appeal is dismissed on merit as also not maintainable.

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Order Date :- 30.7.2019 Siddhant Sahu

Dharmendra Kumar v. State of U.P. and 4 Others

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Dharmendra Kumar v. State of U.P. and 4 Others

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