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2007 DIGILAW 953 (MP)

Shri Hari Siddhi Construction Co. v. Raghunandan

2007-08-31

DEEPAK VERMA, S.C.SINHO

body2007
ORDER Verma, J. -- 1. At the outset, we posed a question to the learned counsel for the appellant with regard to the maintainability of the appeal, against the order dated 25.7.2007, passed by learned Single Judge in WP No. 4361/2007 filed by respondent No.1 herein under Article 227 of the - Constitution of India, in view of section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 (hereinafter referred to as 'Adhiniyam 2005'). 2. Brief facts, bereft of unnecessary details are mentioned herein below: Respondent No. 1 herein admittedly filed writ petition under Article 227 of the Constitution of India, chalenging the order dated 8.3.2007 passed by the learned VIth Additional District Judge, Bhopal, in Misc. Civil Appeal No. 45/2007, whereby the appeal was allowed and the order passed by the learned IVth Civil Judge Class-I, Bhopal in Civil Suit No. 380-N 06, granting temporary injunction in favour of the plaintiff was set aside. The respondents of the said writ petition were noticed. Present appellant was arrayed as respondent No. 14 in the said writ petition. 3. After having heard the learned counsel for the parties at length and after perusal of record, learned Single Judge allowed the writ petition, whereby the order passed by the appellate Court was set aside and the order passed by the trial Court granting temporary injunction in favour of thepetitioner/plaintiff was restored. Relevant paras 14 and 15 of the said order are reproduced hereinbelow: "14. Accordingly, the impugned order passed by the appellate Court is set aside and the order passed by the trial Court granting temporary injunction in favour of the petitioner/plaintiff is restored. 15. Having regard to the controversy and the entire facts and circumstances of the case, the trial Court is directed to make endeavour to decide the suit as expeditiously as possible preferably within four months from the date of receipt of copy of this order. The parties shall cooperate for the final disposal of the suit in the aforesaid time limit." 4. On a perusal of the petition, the nature of order passed by the learned Single Judge and its tenor, it is clear that it was not only filed by the respondent No.1 under Article 227 of the Constitution of India but it was treated also as such by the learned Single Judge. On a perusal of the petition, the nature of order passed by the learned Single Judge and its tenor, it is clear that it was not only filed by the respondent No.1 under Article 227 of the Constitution of India but it was treated also as such by the learned Single Judge. The learned Single Judge, as it clearly shows, has treated the petition to be one under Article 227 of the Constitution of India. In the obtaining factual matrix the question that emerges for consideration is whether a writ appeal would be maintainable against such an order, in view of the proviso appended to section 2 (1) of the Adhiniyam, 2005, which creates a bar to entertain an appeal, where learned Single Judge has exercised the powers conferred on him under Article 227 of the Constitution. 5. To understand the crux of the matter, it is necessary and relevant to scrutinise the phraseology employed in section 2 (1) of Adhiniyam 2005, which is as under: "2. (1) An appeal shall lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High Court. Provided that no such appeal shall be against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India." In view of the proviso appended to section 2 (1) of the Adhiniyam, 2005, it leaves no room for doubt that against an order passed by the learned Single Judge whereby he has exercised the jurisdiction conferred on him under Article 227 only, no writ appeal would be maintainable. 6. Now the question is whether in view of the opinion expressed by the Full Bench this appeal would be saved and would still be maintainable. We have critically examined the opinion expressed by the Full Bench Dr. laidev Siddha and others v. laiprakash Siddha and others [ 2007 (3) JLJ 151 = 2007 (3) MPHT 388 (FB)]. After considering the previous judgments of the Supreme Court touching the issue, Justice Dipak Misra authoring for himself and on behalf of Hon'ble the Chief Justice, has held as under in para 17 : "17. laidev Siddha and others v. laiprakash Siddha and others [ 2007 (3) JLJ 151 = 2007 (3) MPHT 388 (FB)]. After considering the previous judgments of the Supreme Court touching the issue, Justice Dipak Misra authoring for himself and on behalf of Hon'ble the Chief Justice, has held as under in para 17 : "17. From the aforesaid enunciation of law it is quite vivid and luminiscent that the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature, the jurisdictional prospective in the constitutional context are to be perceived...." Justice K.K. Lahoti concurring with the aforesaid view has given his own reasonings but has summed up at the end of para of 12, which reads as under: "To sum up, the Divisional Bench while entertaining an appeal under section 2 of the Adhiniyam of 2005, in particular the matters arising out of the order passed by the Courts of Tribunals, shall satisfy that the Single Judge exercised original jurisdiction, under Article 226 of the Constitution of India. While considering it, the Division Bench shall look into the pleadings, relief prayed and order or judgment passed by the Single Judge exercising the jurisdiction. In case the Division Bench is satisfied that the Single Judge has not exercised his original jurisdiction under Article 226 of the Constitution in such a case, no writ appeal will be entertained. 7. It is pertinent to mention here that the appellant herein while filing the return on his behalf who was arrayed as the respondent No. 14 in the writ petition, has also admitted in Ground No. B that it was a petition under Article 227 of the Constitution of India. This admission on the part of the appellant would go a long way to show that he also treated it to be a petition under Article 227 only. There is no whisper in the Return that the petition was a composite petition under Article 226/227 of the Constitution of India. At this stage, the appellant cannot be permitted to resile from the said admission to put itself in an advantageous position. 8. There is no whisper in the Return that the petition was a composite petition under Article 226/227 of the Constitution of India. At this stage, the appellant cannot be permitted to resile from the said admission to put itself in an advantageous position. 8. Learned counsel for the appellant, Shri A.K. Jain submitted that in such a case where the trial Court was pleased to grant injunction in favour of respondent No. 1 plaintiff, and on an appeal being preferred by this appellant, purportedly under Order 43 Rule 1 (r) CPC, the same was allowed and injunction granted by the trial Court was vacated, thereafter writ petition was preferred by the respondent No. l/plaintiff and the same having been allowed, appellant would have no remedy available. According to him thus the right of the appellant has been determined finally till the pendency of the suit and, therefore, it would be an order finally adjudicating the rights of appellant with regard to injunction granted in favour of respondent No.1/ plaintiff. In this view of the above he submitted that it should be treated as a petition under Article 226 of the Constitution of India or in the alternative a composite petition under Article 226/227 even though it might not have been described as such. To buttress the contention further in this regard, learned counsel for the appellant has placed reliance on the decision rendered in the case of Smt. Sushila Bai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha and others [(1993) Suppl. I SCC 11]. 9. On a deeper scrutiny we do not find any merit and substance in this contention also. The ratio decidendi of the aforesaid case does not apply to the facts of this case, much less to the appellant's benefit. The Full Bench in Dr. Jaidev Siddha (supra) has also considered the aforesaid decision and thereafter the opinion was expressed. 10. Thus, the factual scenario depicts a different picture. Respondent No. 1 had not only preferred a petition under Article 227, even learned Single Judge proceeded to decide it as such. Order passed by the learned Single Judge shows that he had passed the same under Article 227 of the contour of the order so reflects. Therefore, it cannot be treated as a petition under Article 226/227 of the Constitution of India. 11. Order passed by the learned Single Judge shows that he had passed the same under Article 227 of the contour of the order so reflects. Therefore, it cannot be treated as a petition under Article 226/227 of the Constitution of India. 11. In view of the aforesaid premises, we are of the considered opinion that against the order as passed by learned Single Judge in the case at hand, the appeal is not maintainable in view of proviso appended to section 2 (1) of the Adhiniyam. 12. In the result, the appeal is dismissed in limine as not maintainable.