Allahabad High Court
John Augstine vs State Of U.P. And 4 Others on 29 June, 2021
Bench: Manoj Misra, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 402 of 2021
Appellant :- John Augstine
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Deepak Kumar
Counsel for Respondent :- C.S.C.,Subedar Mishra
Hon'ble Manoj Misra,J.
Hon'ble Dinesh Pathak,J.
1. We have heard, through video conferencing, Sri Trideep Pai, assisted by Sri Deepak Kumar, for the appellant; learned Standing Counsel for respondents 1, 2 and 3; and Sri V.K. Singh and Sri R.K. Ojha, learned senior counsels, for the respondents 5 and 6.
2. This intra court appeal is against a stay extension order dated 25.03.2021 passed by the learned Single Judge in Writ C No.34333 of 2015 by which the earlier interim order directing maintenance of status quo has been extended.
3. A preliminary objection has been taken by the learned counsel for the respondents with regard to the maintainability of this appeal on the ground that it is not against a judgment but against an interlocutory order, interim in nature, which by itself does not adjudicate upon the rights of the parties, and therefore an intra appeal would not lie under Chapter VIII Rule 5 of the High Court Rules.
4. The order impugned in this appeal dated 25th March, 2021 is extracted below :
"Bearing in mind the fact that the interim order which was granted originally continued right up to May 2020 whereafter it could not be continued on account of the lockdown which ensued, the original order shall stand extended till the next date of listing.
List in due course."
5. Learned counsel for the appellant submits that the impugned order has been passed by ignoring that the interim order was last extended on 1st May, 2019 up to 8th July, 2019, and thereafter the matter was not listed. Consequently, an application was moved for extension of the interim order which was got rejected as not pressed by order dated 24th March, 2021. Therefore, there was no interim order in existence which could have been extended by the learned Single Judge. It has also been urged that the erstwhile secretary through whom the petition was filed had died and multiple substitution applications were pending therefore without addressing those applications extension of interim order was not at all proper.
6. Per contra, learned counsel for the respondents submitted that in PIL No.564 of 2020, by a general direction dated 26th March, 2020, the interim orders that expired subsequent to 19th March, 2020 or were due to expire within a period of one month from the date of the order, were directed to continue up to 26th April, 2020 and, subsequently, the general direction in the PIL was extended. Even otherwise, a writ court has ample power to extend the order even if it had expired. They submitted that since the petition was by a registered society, which is a juristic person, on death of its secretary, it would not abate. More so, when, admittedly, substitution applications were filed. Thus, the learned single judge acted well within his jurisdiction while extending the interim order by keeping in mind the intervening pandemic that caused wide scale disruption in regular hearing of matters pending in court.
7. Having considered the rival submissions, in our view, the merits of the stay extension order could only be examined by us in this appeal if we find the appeal maintainable. This intra court appeal is under Chapter VIII Rule 5 of the Allahabad High Court Rules. Chapter VIII Rule 5 is
extracted below:
"CHAPTER VIII Rule 5
Special appeal :- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
8. Under Chapter VIII Rule 5, an appeal is maintainable against a judgment. In the case of State of UP Vs. Kumari Renu Tiwari, 1993 (2) UPLBEC, 1325 : 1993 (2) ALR 233, which has been followed consistently, on the true import of the term judgment, the following propositions were laid down:
"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;
2. ordinarily for an adjudication to be judgement it should bring about termination of the proceeding in which the adjudication is made; and
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"
9. In the instant case, the impugned order only extends the earlier order which was an order directing parties to maintain status quo. Neither the impugned order nor the earlier interim order addresses the rival claims or the rights of the party. Further, in the grounds of appeal no specific ground has been taken to demonstrate that any valuable right had accrued to the appellant after alleged expiry of the interim order that got affected by the impugned stay extension order. Thus, in our view, the impugned order does not partake the character of a judgment. The appeal is therefore not maintainable under Chapter VIII Rule 5 of the High Court Rules and is dismissed as such. The dismissal of this appeal would be without prejudice to the right of the appellant to seek for vacation or modification of the interim order or for early hearing of the matter before the learned Single Judge.
Order Date :- 29.6.2021.
Rks.
