Allahabad High Court
Rajiv Lochan Shukla And 7 Others vs State Of U P And 4 Others on 22 September, 2023
Bench: Manoj Kumar Gupta, Donadi Ramesh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:183718-DB
Court No. - 21
Case :- SPECIAL APPEAL No. - 634 of 2023
Appellant :- Rajiv Lochan Shukla And 7 Others
Respondent :- State Of U P And 4 Others
Counsel for Appellant :- Pradeep Kumar Upadhyay,Ram Sharan Singh
Counsel for Respondent :- C.S.C.,Prabhakar Awasthi
Hon'ble Manoj Kumar Gupta,J.
Hon'ble Donadi Ramesh,J.
1. The instant intra-court appeal is directed against the order dated 22.08.2023, which reads as follows:-
"1. Short counter affidavit filed today is taken on record.
2. Considering the nature of allegations, counter allegations and many other factual aspects which have been argued by both the sides, matter requires disposal after exchange of counter and rejoinder affidavits.
3. The respondents may file counter affidavit within four weeks.
4. The petitioners may file rejoinder affidavit within two weeks.
5. List this case on 06.10.2023 alongwith the connected case."
2. Sri Prabhakar Awasthi, learned counsel appearing on behalf of respondents no.4 and 5 submits that the appeal is not maintainable, as the order impugned does not decide the rights of the parties. It is merely an order of procedural nature granting time to the parties to exchange affidavits and fixing a date for hearing.
3. In rebuttal, learned counsel for the appellants submits that since interim relief was urgently needed and, therefore, the order of learned Single Judge not considering the said aspect would make the order amenable to the jurisdiction conferred by Chapter 8 Rule 5. He has placed reliance on a Full Bench judgement of this Court in Ashutosh Shrotriya and others Vs. Vice-Chancellor, Dr. B.R. Ambedkar University and others, 2015 (8) ADJ 248.
4. In the aforesaid judgement, the questions referred to the Full Bench were:-
"(1) Where a learned Single Judge while hearing a writ petition calls for counter and rejoinder affidavits, but does not pass any order on the stay application either granting or refusing a stay, will the order amount to a refusal of interim relief to the petitioner either temporarily or impliedly and a 'judgment' within the meaning of Chapter VIII Rule 5 of the Rules of the Court, 1952;
(2) Does an order which adversely affects the valuable rights of a party by a temporary or implied refusal of interim relief have the trappings of a judgment."
5. The Full Bench observed that an order calling for filing of a counter affidavit and a rejoinder affidavit is a direction of a procedural nature, in aid of the ultimate progression of the case. The idea of passing such an order is to enable the court to consider the rival perspectives and eventually for the purpose of the disposal of the case at the final stage. A purely procedural direction of this nature would ordinarily not be amenable to the remedy of a special appeal even if the consequence of the issuance of such a direction is to cause some inconvenience or prejudice to one or other party. A purely procedural direction of calling for a counter affidavit and rejoinder would not be amenable to a special appeal since it decides no rights and does not affect the vital and substantive rights of parties. Where, however, the special appellate court finds that the order is not just a procedural order but would result in a grave detriment to substantive rights of an irreversible nature, the jurisdiction of the Court is wide enough to intervene at the behest of an aggrieved litigant. It has also been observed that the Divisional Bench seized of the appeal will have to decide in the facts of each case, the nature of the order passed by a Single Judge while determining whether the appeal is maintainable or not. The answer to the questions referred is contained in paragraph 37 of the judgement which is as follows:-
"37. In view of the aforesaid discussions, we answer the question of law referred to the Full Bench by holding that, an order of a learned Single Judge upon a petition under Articles 226 or 227 of the Constitution only calling for counter and rejoinder affidavits is merely a procedural order in aid of the progression of the case. An order of this nature which is purely of a procedural nature in aid of the progression of the case and to enable the Court to form a considered view after a counter affidavit and a rejoinder are filed would not be amenable to a special appeal under Chapter VIII Rule 5. Such an order does not decide anything nor does it have the trappings of finality. If a party to the proceedings seeks to press an application for ad interim relief of a protective nature even before a counter affidavit is filed, on the ground that a situation of irretrievable injustice may result or that its substantive rights would be adversely affected in the meantime, such an argument must be addressed before the Single Judge. If such an argument is urged, it should be dealt with however briefly, consistent with the stage of the case, by the Single Judge. It is for the Division Bench hearing the special appeal to consider whether the order decides mattes of moment or is of such a nature that would affect the vital and valuable rights of the parties and causes serious injustice to the concerned party."
6. A perusal of the order reveals that the order merely grants time to the parties to exchange affidavits and fixes a date for consideration of the matter on merits. The order does not decide any matter of moment so as to have any adverse effect on the rights of the appellants. All questions are still open to be urged before learned Single Judge. Consequently, we are of considered opinion that the instant appeal is not maintainable.
7. Rejected.
(Donadi Ramesh, J.) (Manoj Kumar Gupta, J.)
Order Date :- 22.9.2023
SL
