Committee of Management and Another vs State of U.P. and Others

Heard Shri Ashok Khare, Sr. Advocate for the petitioners appellants assisted by Shri Bhola Nath Yadav. Learned Standing Counsel appears for respondent Nos. 1 to 5. Shri C.B. Yadav, Sr. Advocate assisted by Shri Nisheeth Yadav appear for the respondent No. 6.

This intra court appeal under Chapter VIII Rule 5 of the Rules of the Court has been filed against the orders dated 09.10.2009 and 21.10.2009, which read as follows:

Hon''ble Sabhajeet Yadav, J.

List in the next cause list.

Dt.09.10.2009

Hon''ble Sabhajeet Yadav, J.

List in the next cause list before another bench after seeking nomination from Hon''ble Chief Justice/ Senior Judge.

Dt.21.10.2009

Prima facie on the first impression the appeal is not maintainable against the order listing the matter in the next cause list and releasing the matter to be nominated to another Single Judge. The facts stated by Mr. Ashok Khare, however, require consideration.

It is submitted by Shri Ashok Khare that in the Writ Petition No. 48989 of 2008 giving rise to this special appeal an interim order was passed on 18.9.2008 as follows:-

Learned Counsel for the petitioner may implead Shri Nar Singh Bahadur as respondent No. 6 today.

Shri B.L. Yadav has filed a caveat on behalf of one Nar Singh Bahadur has appeared to oppose this petition. He may file a counter affidavit by the next day.

Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1 to 5. All may file their counter affidavit by the next date.

Apparently, the election dated 23.7.2008 was conducted in accordance with the directions of the Prescribed Authority but, it has not been recognized on the alleged ground that it was held against the provisions of the scheme of administration without confronting the petitioners with the alleged violation. Thus, the operation of the order dated 28.8.2008 shall remain stayed till the next date.

List in the week commencing 20.10.2008.

It is submitted that the order was extended from time to time. On 09.10.2009 both the counsels had appeared and argued the matter. Shri Ashok Khare states that the Court while directing the matter to be listed in the next cause list extended the interim order, but on account of some error on the part of stenographer, the part of the order by which the interim order was extended, was not noted down. As soon as this fact was noticed, the petitioner filed an application dated 14.10.2009 with prayer to make necessary corrections in the order dated 09.10.2009 by extending the interim order dated 18.9.2008. When the application came up, learned Single Judge hearing the matter decided not to hear the matter and directed the writ petition to be listed in the next cause list before another Bench after seeking nomination from Hon''ble the Chief Justice/ Senior Judge.

It is submitted by Shri Ashok Khare that in view of the settled legal position reiterated by this Court in M.K. Bajpai v. State of U.P. and Ors. 2008 (7) ADJ 617 (DB) a special appeal is maintainable against an order in which the Court has refused to grant interim order, or has rejected the stay application, which materially affects the rights and prejudice the appellant. He would submit that the order by which the interim order was not extended without giving any reasons whatsoever, is final order rejecting the stay application against which special appeal under the Rules of the Court is maintainable.

Shri C.B. Yadav, learned Counsel appearing for the respondents has raised objections to the maintainability of the appeal. He submits that it is not the case of Shri Ashok Khare, that the interim order was not extended. An application was filed for making corrections to extend the interim order. The application was not to extend the interim order, but to make corrections by which the order extending the interim order was not recorded. In the circumstances that the application for correction is still pending to be decided by some other Single Judge this special appeal is not maintainable.

Shri Ashok Khare, learned Counsel for the petitioner appellant submits in reply that the application under the Rules and practise of the Court was maintainable before the same Hon''ble Judge. Now since the Hon''ble Judge has decided not to hear the matter, the application for correction cannot be decided by any other judge and has become infructuous for all purposes. He makes a statement that he withdraws the application for correction and requests the Court to decide the matter as in that case special appeal would definitely be maintainable.

An objection has been taken to the withdrawal of the application by making an oral prayer before the appellate court. Shri C.B. Yadav submits that the petitioner appellant has not taken any ground that the order by which the matter was directed to be listed in the next cause list contains no reason and that since this appeal is statutory appeal under the Rules of the Court, the Court should not hear the submissions against the order dated 09.10.2009 on any ground, which has not been taken in the memo of appeal. He relies upon the judgment in Raj Narayan Singh Yadav v. State of U.P. and Ors. Special Appeal No. 684 of 2009 decided on 7.5.2009 and Committee of Management of National Integrated Medical Association and Ors. v. State of U.P. and Ors. 2009 (1) ADJ 144 (DB).

We are faced with a peculiar situation in which an application, which was ordinarily maintainable before the learned Single Judge to consider to correct his own orders, has been directed to be listed before some other judge. But these things happen in Court, and thus we have to see the consequences flowing from such orders.

Shri C.B. Yadav has made positive statement in the Court that he was pursuing his application for vacating the interim order and that on 09.10.2009 the matter was argued and that interim order was not extended. On this statement we find that the learned Single Judge, who has now referred the matter to some other judge, and in view of the fact that the application for correction has been withdrawn would be deemed to have given no reasons for refusing to entertain the interim order. The interim order, which was continuing since 18.9.2008 was operative for more than a year. It has been vacated without giving any reason at all. The order, therefore, will certainly fall within the category of orders by which the interim order has been refused, and which has effect of prejudicing the rights of the petitioner appellant. In Committee of Management of National Integrated Medical Association v. State of U.P. 2009 (74) ALR 260 this Court relying upon Midnapore Peoples'' Co-op. Bank Ltd. and Others Vs. Chunilal Nanda and Others, that the interim orders/ interlocutory orders passed during the pendency of the case fall in the categories namely (i) the orders, which finally decide a question or issue in controversy in the main case; (ii) the orders which finally decide an issue, which materially and directly affect the final decision in the main case; (iii) the orders which finally decide a collateral issue or question, which is not the subject matter of the main case, and that there are other orders, (iv) which are routine orders passed to facilitate the progress of the case till its culmination in the final judgment and those, (v) which may cause some inconvenience or some prejudice to a party but which do not finally determine the rights and obligations of the parties.

The term ''judgment'' occurring in Clause 15 of the Letters Patent will take into its fold not only the judgment as defined in Section 2(9) of the CPC and orders enumerated in Order XLIII Rule 1 CPC, but also other orders, which though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finally in regard to some collateral matter, which will affect the vital and valuable rights and obligation of the parties. Interlocutory orders, which fall in the first category in (i) to (iii) as above, are judgments for the purposes of filing the appeal under the Letters Patent. On the other hand the orders falling under Categories (iv) and (v) are not judgments for the purposes of filing appeals provided under the Letters Patent. In M.K. Bajpai (Supra) this Court referring to Shah Babulal Khimji Vs. Jayaben D. Kania and Another, and Midnapur Peoples Cooperative Bank Ltd. (Supra) held that an order, which does not fall in any of the categories under Order XLIII Rule 1 CPC, nor falls in any of the interlocutory order affecting the valuable rights of the parties, are not appellable. It was held that there may be interlocutory orders other than the order in any of the clauses under Order XLIII Rule 1 CPC, which possess the characteristic and trapping of finality, in that, the orders may adversely affect a valuable right of the party, or decide an important aspect of the trial, in an ancillary proceedings. The appeals against such orders are also maintainable. The order vitally affecting the valuable right will undoubtable be treated within the meaning of Letters Patent to be appellable to larger bench.

In this case the effect of the impugned order is that the interim order operating for last one year protecting the rights of the petitioner appellants to manage the institutions has been abruptly put to an end without any reasons. The order does affect the valuable right of the party in the progress of the case.

In the special facts and circumstances of the case, we dispose of the special appeal with directions to both the parties to maintain status quo as on date, until the writ petition is heard, or any matter in the writ petition is decided either way.