Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 734 (RAJ)

KHUSHAL CHAND v. STATE OF RAJASTHAN

2002-04-08

K.K.ACHARYA, R.BALIA

body2002
Judgment RAJESH BALIA, J. ( 1 ) THIS matter comes up on an application under Section 5 of the limitation Act as the appeal is barred by 58 days. ( 2 ) RAISING objection to the application firstly it has been submitted that since it is an appeal against the order passed by the learned single Judge by way of an interim relief which is an interlocutory order not deciding the rights of the parties, therefore, appeal is otherwise not maintainable under Section 18 of the rajasthan High Court Ordinance and the rules framed by the Rajasthan High Court, therefore, consideration of application under Section 5 of the Limitation Act shall be of academic importance and secondly that the applicants have failed to make out any sufficient cause which could have prevented them from filing the appeal within limitation. ( 3 ) CONSIDERING the second point first, we are of the opinion that the petitioner has made out a case for existence of sufficient cause which prevented them from not filing the appeal within the period of limitation. It has been stated by the applicants in their application in the first instance that the interim order passed by the learned Single Judge on 27-11-2001, was received by them on 7-12-2001 at jaisalmer. That order shows no positive direction against the appellants but only direction of deposifing of money to the respondent and for admitting their petition. Apparently, it did not appear that the order is against him in his interest and he has not occasion to file an appeal. ( 4 ) HOWEVER on 26-2-2002, Officer of the indian Oil Corporation informed the appellants that the High Court has allowed them to enter into the land and to establish petrol pump. The appellants gathered this information from their lawyer on 27-2-2002 and then came to know for the first time about the existence of order dated 15-12-2001 which has been passed as an amendment or rectification of the order dated 27-11-2001. The said order records that in the order dated 27-11-2001 something remained to be transcribed and therefore, certain additions have to be made thereunder. The said order records that in the order dated 27-11-2001 something remained to be transcribed and therefore, certain additions have to be made thereunder. So far as the factum of remaining something in the order dated 27-11-2001 was admitted as the fact by both the learned counsel and as a result of which by order dated 15-12-2001, the Court directed that in the order dated 27-11-2001 it should be read in addition that "in case deposits as ordered in the order dated 27-11-2001 is made by the Indian Oil Corpo-ration, Indian Oil Corporation will be permitted to use the land in question. This order will be subject to final disposal of the wirt petition. ( 5 ) THIS order, according to the appellants was never communicated to them and they did not come to know of it earlier than 27-2-2002. The appellants were informed by Officers of indian Oil Corporation that they have been permitted to establish petrol pump on the disputed land. When they visited the counsel in person on 27-2-2002, they for the first time came to know of the order dated 15-12-2001 by which additions were made in earlier order dated 27-11-2001 by way of rectification. Hence, they could not prefer appeal within period prescribed for special appeal and were prevented by sufficient cause from filing appeal within limitation. The appeal was filed on 13-3-2002 against the order which was passed on 27-11-2001 as amended on 15-12-2001, within reasonable time thereafter. ( 6 ) THE respondents have urged that receipt of the order dated 27-11-2001 by the appellant is not in dispute and the fact that the order has been passed in presence of learned counsel for both the parties, it amounts to an order passed in presence of parties and a party represented by counsel cannot plead ignorance of such order. Learned counsel strenuously relied on the presumption emanating from the appearance of the counsel that the appellants must be to have the knowledge of the order. ( 7 ) WE are of the opinion that while presumption about the knowledge of the order could, be drawn from the fact that the appellants advocate knew about the order and it is like any other such presumption, which is rebuttable, it remains a rule of evidence that is to say unless contrary is shown, the presumption shall have the operation. But like any other fact, if the affected party is able to establish that in fact it never came to know about the order, notwithstanding in the knowledge of the lawyer, they cannot be deprived the benefit of section 5 of the Limitation Act in the appeal. The presumption about the knowledge of the lawyer to be knowledge of party is not a rule of conclusive proof of the fact about the knowledge of the party. It remains a rebuttal presumption. ( 8 ) IN this connection, reference may be made in the case of Suresh and Ors. v. imran khan and Ors. It was a case in which copy of interim order passed by the Court was served on counsel for the person against whom interim order was made. It was contended that notice to lawyer was notice to party and respondent was in default of compliance. ( 9 ) THE Court said that unless it is shown that lawyer communicated the order to the litigent, knowledge of such order cannot be attributed to hold him liable for disobedience. ( 10 ) THIS shows that notice to lawyer cannot be treated as conclusive fact about knowledge of litigant, whom he represents. ( 11 ) THE appellants affidavit in this regard sounds reliable and acceptable that he has come to know about the order dated 15-12-2001, making amendment in order dated 27-11-2001, on 27-2-2002. Order dated 15-12-2001 is the real cause of grievance for seeking redressal by filing appeal agaisnt impugned orders dated 27-11-2001 as amended by the order dated 15-12-2001 which was not in the knowledge of appellants until 27-2-2002. ( 12 ) THEREFORE, the appeal could not have been filed by the applicants-appellants within the period prescribed for filing the appeal against such an order. In missing limitation for filing an appeal against the order dated 15-12-2001, for want of knowledge of the applicants-appellants about that order, for which the appellants cannot be held to be negligent, they cannot be punished. The fact that the counsel for the appellant has promptly despatched the certified copy of the order dated 27-11-2001, does not lead to any inference that he also despatched the order dated 15-12-2001. It cannot be lost sight that order dated 15-12-2001 was made as a result of joint request 1. (1995) 3 Supp. SCC 306. The fact that the counsel for the appellant has promptly despatched the certified copy of the order dated 27-11-2001, does not lead to any inference that he also despatched the order dated 15-12-2001. It cannot be lost sight that order dated 15-12-2001 was made as a result of joint request 1. (1995) 3 Supp. SCC 306. made by both learned counsel that something remained to be transcribed in the order dated 27-11-2001 and was passed only as rectification. The possibility of laxity on the part of counsel in not informing about rectification, cannot be ruled out. In fact no application for obtaining copy of order dated 15-12-2001 was made earlier and this circumstance supports the averments of applicants-appellants. We are, therefore, inclined to believe that infact the applicant has not acquired the knowledge of the order dated 15-12-2001 until 27-2-2002. That being so, it must be held that the appellant was prevented by sufficient cause from filing the appeal within limitation against the order dated 27-11-2001 as modified/clarified by order dated 15-12-2001. The application under section 5 of the Limitation Act deserves to be allowed and the same is allowed. The appeal may be registered. ( 13 ) COMING to the first point, which pertains. to maintainability of appeal once the appeal is held to be within limitation and properly instituted, our attention was invited by the learned counsel for the respondents to a Bench decision of this Court in the case of Gir Raj prasad and Ors. v. State of Rajasthan and Ors. , in which after referring to a number of judgments, the Division Bench held that the order under appeal was an interlocutory order which does not determine the right of the parties finally then the special appeal is not maintainable The tenor of the order passed by the learned Single Judge showed that he has not decided any issues relating to the legal rights of the parties and what he had done was to list the case for final disposal in the month of July, 1996. ( 14 ) IN coming to this conclusion, the division Bench has relied on principle that the interlocutory order must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceedings or in the suit itself or in a part of the proceedings. ( 14 ) IN coming to this conclusion, the division Bench has relied on principle that the interlocutory order must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceedings or in the suit itself or in a part of the proceedings. In coming to this conclusion the Division Bench referred to a number of illustrative cases in which interlocutory order amounts to judgment which can be subject of appeal. Apparently, therefore, it will be required in each case to find out whether the impugned order passed by the learned Single Judge amounts to a judgment in the context of the intra court appeals. It is only an order which conforms the characteristic of the judgment that a special appeal is maintainable against the order of the Single Bench to a Division bench as an intra court appeal. It does not lay down as an inflexible rule that any order which is passed as an interim order, it is not appealable whatever may be its tenor or import. ( 15 ) ON the other hand, the learned counsel for the appellants has relied on the proposition that in the case like present, special appeal is maintainable in view of another Bench decision of this Court in the case of B. S. Rathore and Ors. v. University of Rajasthan and ors and a later Supreme Court decision in the case Central Mine Planning and Design institute Ltd. v. Union of India and Anr. DATE : 8-4-2002 ( 16 ) WE have given our anxious consideration to the above contentions. In our opinion, the position now appears to be fairly settled and clear, so far as it concerns to the scope of maintaing intra court appeal before a Division Bench under letters Patent or under Section 18 of the Rajasthan high Court Ordinance, as stated by the Supreme Court in the case of Central Mine Planning and Design institute Ltd. (supra) that the "judgment" could be of three kinds : (1) A final judgment :-In this category falls a judgment by which suit or action brought by the plaintiff is dismissed or decreed in part or full: that a final adjudication of I is on merits. (2) A preliminary judgment :-This category is sub-divided into two classes: (a) where the trial Judge by an order dismisses the suit, without going into the merits of the suit, only on a preliminary objection raised by the defendant/respondent on the ground of maintainability; (b) where maintainability of the suit is objected on the ground of bar of jurisdiction, e. g. res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like; ( 17 ) THESE are the judgments where a person is non-suited on preliminary objection as to the maintainbility of the suit or to the jurisdiciton of the Court to try the issue or due to any defect or absence of any pre-conditions before the suit can be brought. This also results in culminating the proceedings before the court concerned. ( 18 ) THE third class of the judgement which has been identified by the Supreme Court, is intermediary or interlocutory judgment. In explaining the distinction between intermediary and interlocutory judgments and intermediary or interlocutory orders, not affecting the valuable rights of the parties or decide an important aspect of the trial in an ancillary proceedings, which do not finally terminate proceedings, firstly the Supreme Court has held that orders falling in the category of Order 43, Rule 1 of C. P. C. which have been made appealable by the Legislature are to be held to be intermediary and interlocutory judgments amenable to appeal under Letters Patent. In such case appeal from a judgment of the Single Judge is maintainable unless otherwise expressed and secondly, any other orders which possess the characteristics and trappings of finality and may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceedings. ( 19 ) IN the last category of judgment, the supreme Court reiterated the view expressed by three-Judge Bench of the Supreme Court in the case of Shah Babulal Khimji v. Jayaben d. Kania, that every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. ( 20 ) IN the aforesaid view of the matter, we are of the opinion that so far as the interim orders which properly fall within Clauses (a) to (w) of Order 43, Rule 1 arid are specifically appealable under the Civil Procedure Code are also appealable under Section 18 of the rajasthan High Court Ordinance. Where the civil Procedure Code in terms is not applicable to any proceedings like proceedings under article 226 of the Constitution then principle can be applied that if the order which is sought to be appealed can properly fall within any of the Clauses (a) to (w) of Order 43, Rule 1 had it been proceeding governed by Civil Procedure code. If so, such orders must be held to be appealable under Section 18 of the rajasthan High Court Ordinance and the rules framed thereunder. If the order cannot be termed as appealable with the aforesaid analogy then each order passed by the learned Single judge sought to be examined on the basis whether it possesses the characteristics and trappings of finality and whether it may adversely affect a valuable right of the party or results in deciding an imporant aspect of the trial in an ancillary proceedings. ( 21 ) THE Supreme Court in the above case was considering the issue in a case where an objection was raised to the maintainability of letters Patent appeal before the Patna High court in respect of an order passed on an application made under Section 17-B of the Industrial Disputes Act, 1947. ( 22 ) IN this connection, it would be pertinent to notice that the Supreme Court in the case of Shah Babulal Khimji v. Jayaben D. Kania (supra) has clearly spelt out that an order refusing appointment of a receiver and grant of an ad interim injunction, it is a judg-ment within the meaning of the Letters Patent both because Order 43, Rule 1 applies to internal appeals in the High Court, and also because such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent. Therefore, one cannot maintain any doubt about the maintainability of Letters Patent appeal in respect of refusing and allowing injunction prayer. Therefore, one cannot maintain any doubt about the maintainability of Letters Patent appeal in respect of refusing and allowing injunction prayer. ( 23 ) THE decisions referred to by the learned counsel for the respondents do not detract from the aforesaid consideration. ( 24 ) IN the first case, cited by the learned counsel in M/s. Gulam Abbas Kamruddin v. The State of Rajasthan6, it may be noticed that in that case, the petitioner-appellant was challenging the order passed by the Fishery department of the Government of Rajasthan, affecting his right to remove wood, charcoal etc. from the Rana Pratap Sagar. The petitioner has asked for an interim relief that the respondents be directed not to restrain the petitioner from removing his material i. e. wood, charcoal etc which he had prepared in execution of the contract and which is lying on the spot and has also prayed for staying of the operation of the orders. The learned Single judge passed an order, permitting the petitioner to remove the wood and bushes charcoal etc. , which are covered by the contract and which have been removed or cut till date i. e. 29-4-1981 and the petitioner was not allowed to do anything else in pursuance of the contract except the above till further orders and this was further conditioned that while removing the wood or charcoal or bushes, which have already been removed from the roots, the petitioner would allow the representative of the respondents to prepare an inventory mentioning the weight, quality, quantity and cost of them and would give an undertaking to the respondents that in case the writ petition is dismissed, the amount so valued, would be paid by him. This order was further modified, permitting the petitioner to continue his oeprations to clear the disputed area of rawat Bhata Dem and he was to allow the representative of the respondents to prepare an inventory mentioning the weight, quality, quantity and cost of them and would give an undertaking to the respondents that in case the writ petition is dismissed, the amount so valued should be paid by him. ( 25 ) THUS, it would be seen that the injunction/stay sought by the petitioner-appellant had been granted to him but he was aggrieved only against the condition with which the interlocutory order has been made in favour of the petitioner. ( 25 ) THUS, it would be seen that the injunction/stay sought by the petitioner-appellant had been granted to him but he was aggrieved only against the condition with which the interlocutory order has been made in favour of the petitioner. It is in the aforesaid circumstances that the Court said that the petitioner has been permitted to remove the wood, charcoal or bushes of the disputed area on certain conditions and the part of order under appeal does not at all determine the rights of the parties and order specifying conditions cannot be said to be final. ( 26 ) IN the aforesaid circumstances, the conditional injunction/interim order granted by the Court in favour of the petitioner does not possess the characteristics or attributes of a judgment as envisaged by Section 18 (1) of the Ordinance and appeal against it is not maintainable. It was not a case where injunction sought as a plaintiff has been refused or the parties against whom the injunction has been granted has come for challenging the order. ( 27 ) THE other case on which reliance has been placed by the learned counsel is Gir Raj prasad and Others v. State of Rajasthan and others (supra ). This Judgment, in our opinion, is rendered in peculiar circumstances of its own facts. It was not a matter arising in connection with the case for staying any proceedings or grant of injunction against any of the parties but the petitioner has sought stay of a circular issued by the Government of rajasthan in the matter of filling up the vacancies for Scheduled Castes, Scheduled Tribes and Others Backward Classes in terms of the reservation policy and posts were to be filled by direct recruitment or by promotion. The petitioner has sought the operation of the said circular. This Ciruclar has been stayed earlier by an ex-pa rte order and thereafter, after hearing both the learned counsel for the parties, the Court held that the D. P. C. met on 27-12-1995 prior to passing of the stay order dated 3-1-1996, therefore, the ex-parte stay order could not affect the D. P. C. proceedings and the State may proceed with the selection in pursuance of the D. P. C. meeting held on 27-12-1995 and the promotions so made will be subject to the decision of the writ petition. The interim order staying the operation of the circular qua the petitioners was vacated. The objection as to maintainability of appeal against said order was upheld by the Division Bench of this Court as not being a judgment and not falling within the purview of the term judgment as used in Clause 18 of the Rajasthan high Court Ordinance, which give a right of appeal. The Cout laid emphasis on the nature of interim order which has been passed in that case and said that the interim order which has been passed by the learned Single Judge does not amount to a judgment and therefore, the special Appeal against that order is not maintainable. ( 28 ) THE other decision which has been cited by the learned counsel for the respondent is Dr. Vijay Kumar Agarwal v. State of rajasthan. This case, in our opinion, also turned on its own facts. The Court found that the prayer in stay petition and main petition is the same and in that view of the matter, the interim order passed in favour of the applicant by which one seat was ordered to be kept vacant in the Pre-PG Course-2000 so that in case the applicant succeeds he shall have a chance to compete under the quota of physically handicapped persons, was vacated later on and considering the nature of the order in petition under Article 226 of the Constitution in the background of the controversy that was subject matter of writ petition, the Court found that it was not a final order deciding the rights of the parties finally and that appeal under section 18 of the Rajasthan High Court Ordinance is not maintainable. ( 29 ) IN the present case, the appellant claims himself to be allottee of the land in question. Prior to it, it was allotted to the respondent Indian Oil Corporation. In fact, the petitioner has been allotted 85 Bigha and 4 biswas of land in Khasra No. 43 out of which a piece of 200 Ft. of land was given to the indian Oil Corporation for establishing a patrol pump. Prior to it, it was allotted to the respondent Indian Oil Corporation. In fact, the petitioner has been allotted 85 Bigha and 4 biswas of land in Khasra No. 43 out of which a piece of 200 Ft. of land was given to the indian Oil Corporation for establishing a patrol pump. ( 30 ) THE petitioner while challenging the order passed by the Collector made in favour of the respondent-Corporation has prayed for injunction against the Corporation for restraining them from disturbing possession of the petitioner over the land in question which the petitioner claims to be his land and also prayed for staying the operation of the impugned order made in favour of the respondent-Corporation. ( 31 ) AS noticed by us as above, in the first instance, the operation of the order was stayed by the Court on 26-5-1999 which was extended from time to time. Ultimately vide Order dated 27-11-2001, the Court directed Indian Oil Corporation to deposit Rs. 5 lacs with s. B. I. , Bank, Jaisalmer and it was directed that this deposti will be in lien of piece of land measuring 2 bighas and 6 biswas which has already been allotted to the Indian Oil Corporation and the fate of deposit and allotment will be determined on the final adjudication of the writ petition and that deposit will be initially for a period of two years and will be renewed year after year until decision of this writ petition by the Indian Oil Corporation. It may be noticed that the order staying the operation of allotment was neither vacated nor recalled. But such order would not result in permission to instal petrol pump on the disputed plot. Vide order dated 15-12-2001, in the presence of both the parties, additions were made in the order dated 27-11-2001, permitting the Indian Oil corporation to use the land in question which according to the learned counsel for the appellant was never communicated to the appellant, in terms amounted to refusal of the injunction that the Corporation be restrained from disturbing the possession of the petitioner over the land in question and therefore, this appeal filed by him is against such order refusing the temporary injunction, is in the nature of order which is appealable under Order 43, rule 1 and also it affects vitally the rights of the petitioner-appellant. During the pendency of appeal, the land in question, if permitted to be used by the Corporation which affects the construction raised by him and also disturbs his possession over the land in question which he is claiming to be his. Therefore appeal under section 18 of Rajasthan High Court Ordinance and the Rajasthan High Court Rules against the order is maintainable. ( 32 ) HOWEVER, from the Tehsildars report which has been produced by the learned coun sel himself, it is apparent that the possession of the land in question which has been stated to be part of the land allotted to the petitioner was with the Corporation and not with the petitioner-appellant, though, the report of the tehsildar dated 16-3-2000 also refers existence of a room of 16 Ft. and 6 Inch on the south western corner of the disputed plot and also shows electric connection and temporary water tank. It has also been reported that in pursuance of the order of this Court, the corporation has also constructed a boundary wall of about 600 Ft. running length. According to the learned counsel for the respondents, the corporation has also started distribution of petrol on this part of the property which is in his possession. ( 33 ) WE further find from the material placed before us that during the pendency of this litigation, an order has been made on 29-5-2000 which has been produced as Annexure r/1. The petitioner-appellant who had been allotted in all 109 Bighas and 8 Biswas of land in lieu of the compensation under the land acquisition proceedings on 24-7-1997 has been allotted alternative land of 109 Bighas and 8 Biswas land in different Khasra num bers by excluding Khasra No. 443 in totality. Thus, land in question as per the stay order no more remains allotted to the petitioner-appellant. This order, the petitioner says, is not binding on him as it is left on his option whether he accepts it or not by withdrawing the writ petition. We need not go into this aspect of the matter. Thus, land in question as per the stay order no more remains allotted to the petitioner-appellant. This order, the petitioner says, is not binding on him as it is left on his option whether he accepts it or not by withdrawing the writ petition. We need not go into this aspect of the matter. ( 34 ) WE are of the opinion that no interference on merit is called for except to the extent that the Corporation shall not demolish the remaining construction of the petitioner already existing on the land in question as reported by the Tehsildar during the pendency of this writ petition and if it has already demolished, in case the writ petition succeeds, the respondents shall restore the said construction and shall pay compensation for it. Likewise, the respondents shall further give an undertaking that in case the petitioner succeeds, they will remove their construction and every belonging from the land in question without any claim to damages. The appeal is disposed of in terms as above. Appeal disposed of. .