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2008 DIGILAW 658 (BOM)

Sayyed Salim S/o Sayyed Yusuf v. Hrushikesh S/o Pralhad Patil

2008-05-02

P.V.HARDAS, R.M.SAVANT

body2008
JUDGMENT 1. By the above Letters Patent Appeals, the Appellants who are the original Respondents in Writ Petition nos. 4995 of 2007 and 4996 of 2007 have challenged the order dated 28.2.2008 passed by the learned Single Judge by which order whilst admitting the Petitions, the learned Single Judge has granted interim reliefs in terms of prayer clause (C) of the Petitions which reads as follows:- "(C) Pending hearing and final disposal of this writ petition, grant stay to the impugned judgment and order dated 7th August, 2007, passed by learned District Judge-2, Aurangabad in Misc. Civil Appeal no. 25 of 2007, and for that purpose, issue necessary orders" As stated hereinabove the Appellants are the original respondents in the said Writ Petitions 4995 of 2007 and 4996 of 2007. The said Writ Petitions have been filed by the Respondent no.1 to the above Appeals, challenging the order passed by the lower Appellate Court i.e. the learned District Judge, Aurangabad in Misc. Civil Appeal no. 25 of 2007 by which order the injunction granted by the trial Court in favour of the Respondent no.1 came to be vacated by the lower Appellate Court. 2. The subject matter of dispute is land to the extent of 2A and 20G in survey no. 14/4 and 15/2 bearing gut no. 25 totally admeasuring 7H and 76 R situated at village Mitmita, Tq. and Dist. Aurangabad. The Respondent no.1 claims to have purchased the said land from one Laxmibai Vishwanath Mule sometime in the year 1983. The mutation entries have been effected in favour of the predecessors in title of the Respondent no.1 as well as the the Respondent no.1 since the time he has purchased the said land. The Appellants above named, claim to have purchased the same land from the husband of Laxmibai namely Vishwanath Dagdu Mule by registered sale deed dated 27.11.1974 which was executed in favour of one Nathji Nikam i.e. father of the Appellant no.2 in L.P.A. no.48 of 2008. Appellants in Appeal no. 51 of 2008 claim to be the power of attorney holders of the Appellant no.2 i.e. Suresh Nathji Nikam. 3. On the ground that the Appellants herein are disturbing the possession, the Respondent no.1 filed Regular Civil Suit no. 18 of 2007 for perpetual injunction against the above Appellants. The said suit was based on the long standing possession of the Respondent no.1. 3. On the ground that the Appellants herein are disturbing the possession, the Respondent no.1 filed Regular Civil Suit no. 18 of 2007 for perpetual injunction against the above Appellants. The said suit was based on the long standing possession of the Respondent no.1. In the said Suit, an application for temporary injunction numbered as Exhibit 5 was filed by the Respondent no.1. The said application was opposed by the Appellants above named, who contended that the lands in respect of which injunction was sought was sold to them by the husband of Laxmibai, i.e. father of the Appellant no.2 in Letters Patent Appeal no. 48 of 2008. The Trial Court i.e. the learned Civil Judge Junior Division, Aurangabad on the basis of the long standing revenue entries, which indicate that the Respondent no.1 and his predecessors in title were in possession of the land allowed the said Application Exhibit 5 for temporary injunction by an order dated 8.2.2007. 4. Aggrieved by the said order dated 8.2.2007 passed by the learned Civil Judge Junior Division, Aurangabad granting injunction in favour of the Respondent no.1 the Appellants above named filed Misc. Civil Appeal no. 25 of 2007 in the Court of the learned District Judge, Aurangabad. The learned District Judge, Aurangabad by his judgment and order dated 15.2.2007 set aside the order dated 8.2.2007 passed by the Trial Court granting injunction to the Respondent no.1. The said injunction was set aside by the Appellate Court on the basis of the material that was before it. It is this order dated 7.8.2007, which was challenged by the Respondent no.1 in the said Writ Petition nos. 4995 of 2007 and 4996 of 2007. In the said Writ Petitions, initially an order of status quo came to be passed by the learned Single Judge, thereafter the learned Single Judge by the impugned order dated 28.2.2008, admitted the Petition by issuing Rule and granted interim reliefs in terms of prayer clause (C). As mentioned hereinabove it is this order of the learned Single Judge granting interim reliefs in terms of prayer clause (C) which is impugned in the present Letters Patent Appeal. 5. The question that arises for consideration is whether the Appellants are entitled to invoke the Letters Patent jurisdiction of this Court under clause 15 of the Letters Patent. As mentioned hereinabove it is this order of the learned Single Judge granting interim reliefs in terms of prayer clause (C) which is impugned in the present Letters Patent Appeal. 5. The question that arises for consideration is whether the Appellants are entitled to invoke the Letters Patent jurisdiction of this Court under clause 15 of the Letters Patent. As mentioned hereinabove, the subject matter of the Writ Petitions 4995 of 2007 and 4996 of 2007 was the order passed by the lower Appellate Court dated 7.8.2007. The learned Single Judge has granted interim relief in terms of prayer clause (C) and thereby restored the injunction granted by the trial Court vide it’s order dated 2.8.2007. In our view therefore, the learned Single Judge was exercising jurisdiction under Article 227 of the Constitution of India in restoring the injunction granted by the Trial Court. If that be so, though the Petition is styled as one under Articles 226 and 227 of the Constitution of India, this Court in view of the pronouncement of the Apex Court reported in AIR 1986 SC 1272 in the matter of Umaji Keshao Meshram V/s Smt. Radhikabai and anr. would have to consider whether the relief sought was one under Article 226 or 227 of the Constitution of India. Having considered the subject matter of the said Writ Petitions 4995 of 2007 and 4996 of 2007 we are of the view that the above Petitions though styled as one under Articles 226 and 227 of the Constitution of India are actually one which were invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. On behalf of the Appellants reliance is sought to be placed on the judgment of the Apex Court reported in AIR 2006 SC 2190 in the matter of Midnapore Peoples’ Co-operative Bank Ltd. and others v. Chunilal Nanda and others and especially head note (B) thereof in support of their contention that the above Letters Patent Appeals are maintainable. 7. In our view the reliance on the aforesaid judgment of the Apex Court is misplaced. The Apex Court in the said judgment, was concerned with the Appeals filed under Section 19 of the Contempt of Courts Act, 1971. 7. In our view the reliance on the aforesaid judgment of the Apex Court is misplaced. The Apex Court in the said judgment, was concerned with the Appeals filed under Section 19 of the Contempt of Courts Act, 1971. The Apex Court held that an Appeal under Section 19 was also maintainable in the circumstances which are mentioned in paragraphs 11 and 16 which paragraphs are reproduced hereinunder:- "11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus: . I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appelable under section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the matters of a dispute between the parties, will not be in the exercise of ‘jurisdiction to punish for contempt’ and therefore, not appelable under section 19 of the CC Act. The only exception is where such direction or decision as incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)." 16. Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories: (i) Orders which finally decide a question or issue in controversy in the main case. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject matter of the main case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. The term "judgment" occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9), CPC and orders enumerated in Order 43, Rule 1 of CPS, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore ‘judgments’ for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not ‘judgments’ for purpose of filing appeals provided under the Letters Patent." 8. In that view of the matter, the above Letters Patent Appeals are not maintainable and are therefore dismissed as such. 9. In view of the dismissal of the Letters Patent Appeals, nothing survives for consideration in the Civil Application nos.3657 of 2008 and 3917 of 2008, the same accordingly stand disposed of.