Raj Kishan & Ors. vs Prahlad & Ors.
2012 Latest Caselaw 2484 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                   Date of Judgment:17.04.2012.

+     CM(M) 194/2011 & CM No. 3635/2011
      RAJ KISHAN & ORS                       ..... Petitioner
                       Through  Mr. Atha Sagar Verma, Adv.
                versus
      PRAHLAD & ORS                         ..... Respondent
                       Through  Mr. Pradeep Kumar,Adv.
                                Dr. S.P. Sharma, Adv. for R-5.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The impugned order is dated 04.12.2010. The appeal against the

dismissal of an application under Order 1 Rule 10 of the Code of Civil

Procedure (hereinafter referred to as the 'Code') had been entertained by

the first appellate Court i.e. the Court of Additional District Judge. This

was inspite of the fact that an objection about the maintainability of the

appeal had been raised by the respondent.

2 Record shows that the present suit has been filed by the plaintiff

seeking a declaration and permanent injunction against the defendant. In

the course of the proceedings, an application under Order 1 Rule 10 of

the Code had been filed by the applicants namely Prahlad and others

which was dismissed on 10.05.2010. Appeal was filed against this order

which was entertained and the impugned order holding that an appeal

against the dismissal of an application under Order 1 Rule 10 of the

Code is maintainable, thereafter Court had on merits allowed the appeal

and impleaded the applicants as parties in the aforenoted suit.

3 This is the grievance of the petitioner. His vehement contention is

that an appeal against the dismissal of an application under Order 1 Rule

10 of the Code is not maintainable. He has placed reliance upon a

Division Bench judgment of this Court reported as AIR 1990 DELHI 13

Gurmauj Saran Baluja Vs. Mrs. Joyce C. Salim and Others to support

his submission that the provisions of Section 10 (1) of the Delhi High

Court Act, 1966 (hereinafter referred to as the 'said Act') only make

reference to an order which is passed by a Single Judge of the High

Court in exercise of its ordinary civil jurisdiction and as such an order

although not strictly appealable under Section XLIII of the Code yet if it

amounts to a 'judgment', an appeal against the order of the Single

Judge would be maintainable to a Division Court of the High Court

under Section 10 of the said Act.

4 This judgment clearly enunciates this position; the submission of

the respondent that the applicability of Section 10 (1) of the said Act is

also applicable to the subordinate courts is ill-founded and is clearly

contrary to the statutory provisions i.e. Section 10 (1) which

categorically speaks of an order which is passed by a Single Judge of the

High Court in its ordinary civil jurisdiction against which an appeal

would lie to a Division Court.

5 The trial Court had relied upon the aforenoted provisions to hold

that the appeal under Order XLIII of the Code was maintainable and had

thereafter proceeded to pass the order on its merits. The trial Judge has

committed an illegality. At the cost of repetition, Section 10 (1) of the

said Act makes a reference only to an order passed by the Single Judge

of the High Court while sitting in ordinary civil jurisdiction which order

is an appealable to a Division Court. Appeal was not maintainable and

could not have been entertained by the Additional District Judge. On

this count alone, the order needs to be quashed. It is accordingly set

aside.

6 Petition is allowed and disposed of in the above terms.

                                               INDERMEET KAUR, J
APRIL        17, 2012
A