Tariq Ahmad Sheikh vs Muzaffar Ahmad Dar & Ors
2021 Latest Caselaw 877 j&K/2

                                                                                  Sr. No.105
                                                                                  Advance Notice

                                HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
                                                  SRINAGAR

                      CJ Court

                                                    LPA No.98/2021

                      TARIQ AHMAD SHEIKH                               ...APPELLANT(S)
                      Through:-      Mr. Tariq M. Shah, Advocate.

                                           Vs.

                      MUZAFFAR AHMAD DAR & ORS.                      ...RESPONDENT(S)

Through:- Mr. Arshid Andrabi, Advocate-for R1.

Mr. D. C. Raina, AG, with Mr. Sajad Ashraf, GA-for R2 to R4

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.

(JUDGMENT)(ORAL) 10.08.2021

Per Sanjay Dhar 'J'

1) Appellant has filed the instant intra-court appeal under Clause 12

of the Letters Patent against the order dated 27. 05.2021 passed by the

learned Writ Court in a writ petition filed by respondent No.1 herein

against the appellant and official respondents. Vide the impugned order,

the learned Writ Court, while issuing notice on the application bearing

CM No.1946/2021 filed by the writ petitioner (respondent No.1 herein),

directed that Deputy Commissioner, Shopian, shall maintain status quo on

the subject till next date of hearing before the Bench.

2) Having regard to the nature of the impugned order, learned counsel

for the appellant was directed to address the Court on the question of

MOHAMMAD ALTAF BHAT 2021.08.15 22:00 maintainability of this intra-court appeal.

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3) We have heard learned counsel for the appellant on the question of

maintainability of this appeal and perused the record of the case.

4) Clause 12 of the Letters Patent applicable to the High Court

provides for remedy of an appeal from a judgment passed by one Judge

of the High Court before the Division Bench. It reads as under:

"12. And we do further ordain that an appeal shall lie to the said High Court of judicature from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence) of one judge of the said High Court or one judge of any Division Court and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of "one Judge of the said High Court or one Judge of" any Division Court, a consistently with the provisions of the civil procedure code, made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court where the judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of the judges of the said High Court or of such division court shall be to us, our Heirs or Successors and be heard by our Board of Judicial Advisers for report to us."

5) From the perusal of aforesaid Clause, it is clear that the said Clause

confers a right of appeal on a litigant against any judgment unless the same

is expressly excluded. The question that arises for consideration is

whether an interim order of the nature as is the subject matter of instant

appeal qualifies to be a 'judgment' within the meaning of afore-quoted

MOHAMMAD ALTAF BHAT 2021.08.15 22:00 clause.

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6) The Supreme Court in the case of Midnapore Peoples' Coop. Bank

Ltd. Vs. Chunilal Nanda and others, (2006) 5 SCC 399, while dealing with

a similar clause appearing in Letters Patent applicable to Calcutta High

Court, has categorized the interim/interlocutory orders passed during

pendency of a case in the following manner:

"15. 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."

7) After categorizing the interim orders/interlocutory orders in the

aforesaid manner, the Supreme Court distinguished the category of orders

which fall within the definition of term "judgment" from those which do

not fall within the purview of expression "judgment" as occurring in the

relevant clause of the Letters Patent. Para 16 of the judgment is relevant

to the context and the same is reproduced as under:

"16. 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 CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any MOHAMMAD ALTAF BHAT 2021.08.15 22:00 matters in controversy, may have finality in regard to I attest to the accuracy and integrity of this document LPANo.98/2021 Page |4

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) From the foregoing ratio laid down by the Supreme Court, it is clear

that the routine orders which are passed to facilitate the progress of the

case till its culmination in the final judgment and the 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, are not

judgments for the purposes of filing appeals provided in the Letters Patent.

9) We are of the considered opinion that the impugned order passed

by the learned Writ Court falls in the category of the orders mentioned in

the foregoing para inasmuch as the said order though may have caused

inconvenience or some prejudice to the appellant but it does not finally

determine the rights and obligations of the parties.

10) The impugned order does not decide the lis between the parties

either finally or by way of any interim measure. It is open to the appellant

to file his objections to the application on the basis of which the impugned

order has been passed by the Writ Court and to get it altered, modified or

vacated by seeking disposal of the application on its merits. The impugned

order does not qualify to be a judgment within the meaning of Clause 12

of the Letters Patent. Therefore, the instant intra-court appeal against the

said order is not maintainable.

MOHAMMAD ALTAF BHAT
2021.08.15 22:00
I attest to the accuracy and
integrity of this document
                       LPANo.98/2021                                                  Page |5



                      11)      It has been submitted by learned counsel for the appellant that the

appellant has already filed his reply to the main writ petition before the

Writ Court and that the writ petition can be heard on merits. In view of

this, while holding that the instant appeal is not maintainable, we request

the learned Writ Court to hear and decide the writ petition on its merits

expeditiously and in case the same is not possible, at least the pending

applications for interim relief may be decided at the earliest.

12) We further clarify that the parties shall maintain status quo with

regard to possession of the property which is subject matter of the writ

petition and that the proceedings relating to the property in question which

are pending before various authorities/courts, shall go on in accordance

with law unless the same have been stayed by any specific order of

Competent Authority/Court.

13) The appeal shall stand disposed of on above terms.

                                           (SANJAY DHAR)                (PANKAJ MITHAL)
                                              JUDGE                      CHIEF JUSTICE


                      SRINAGAR
                      10.08.2021
                      "Bhat Altaf, PS"

                                     Whether the order is speaking:         Yes/No
                                     Whether the order is reportable:       Yes/No




MOHAMMAD ALTAF BHAT
2021.08.15 22:00
I attest to the accuracy and
integrity of this document