Shri Rajpal Manchanda vs Sh. Braham Tej Singh & Ors.
2010 Latest Caselaw 2387 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RSA 75/2010

                                               Date of Decision: May 04, 2010

       SHRI RAJPAL MANCHANDA              ..... Appellant
                     Through: Mr. Sunder Khatri, Advocate.

                                    versus

       SH. BRAHAM TEJ SINGH & ORS.                        ..... Respondents

                             Through:        Mr. Sanjiv Bahl, Advocate.
       %
       CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

     (1)       Whether reporters of local paper may be
              allowed to see the judgment?

     (2) To be referred to the reporter or not?                  Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                         Yes

                               JUDGMENT

ARUNA SURESH, J. (Oral)

RSA 75/2010 and CM APPL.7006/2010 (stay)

1. Parties to the petition are litigating with each other. Respondent

filed a suit for declaration and permanent injunction against the

appellant. In the said case, Trial Court vide order dated 20.08.2009

allowed the application of the Respondent filed under Order 39 Rule

1 and 2 CPC and directed the appellant to remove lock from the gate

situated on the back side of the suit premises in order to grant access

to Respondent No.1 to the first floor of the property. This order was

challenged by the appellant by filing an appeal being MCA

No.26/2009. The said MCA was dismissed by the learned ADJ vide

the impugned order dated 05.03.2010. This has resulted into filing of

the second appeal.

2. Respondent has challenged the maintainability of the appeal alleging

that no decree has been passed against the appellant vide impugned

order and it being interlocutory order, no appeal lies.

3. Mr. Sunder Khatri learned counsel for the appellant has submitted

that this Court has the power to grant him interim relief in this appeal

and the appeal is maintainable as it has been filed against the order of

the Appellate Court passed in MCA.

4. Section 100 CPC deals with the power of this Court to entertain a

second appeal where substantial question of law is involved. Pre-

requisite of Section 100 CPC is that there should be a decree against

the appellant i.e. second appeal would lie only against the final

judgment and decree of the first Appellate Court.

5. Admittedly, vide impugned order, the Appellate Court and the

Revisional Court, as the case may be, only upheld the order of the

Trial Court whereby an interim relief was granted to Respondent

No.1. In no manner, the Courts below decided the rights of the

parties on merits. Therefore, appellant cannot invoke provisions of

Section 100 CPC seeking redressal of his grievances against the

impugned order of the Courts below. It was for the appellant to

challenge the impugned order in a proper forum. Reference is made

to 'Krishnananda Vs. Kattu Siva Ashram', (2007) 10 SCC 185.

6. Learned counsel for the appellant has submitted that RSA filed by

Respondent No.1 has been entertained by the Court. Counsel for the

Respondent has submitted that second appeal was filed when a suit

for declaration was dismissed by the Trial Court and he also failed in

the first appeal. The said RSA, therefore was filed against the decree

and was maintainable. Present appeal cannot be entertained simply

because another appeal filed by Respondent No.1 is pending

adjudication between the parties relating to the same dispute.

7. Therefore, the appeal being not maintainable, it is accordingly

dismissed. Appellant is at liberty to approach the appropriate forum

for redressal of his grievance.

(ARUNA SURESH) JUDGE MAY 04, 2010/vk