Gowri Shankar Palnitkar vs Deputy Commissioner, Municipal Corporation, Hyderabad, Secunderabad Division

Alladi Kuppuswami, J.—This appeal is sought to be filed against an order of Justice Raghuvir directing notice returnable in ten days in a petition for suspending the order of the Deputy Commissioner. Municipal Corporation of Hyderabad, Secunderabad Division, directing the petitioner not to proceed with the construction and revoking the permission to construct a compound wall pending disposal of the writ petition filed by him challenging the said order we are unable to see how a writ appeal lies against an order merely directing notice returnable in ten days. Under Clause 15 of the Letters Patant, an appeal lies from the judgment of the single Judge to a Division Bench. Two tests have been laid down by the Supreme Court in Asrumatidebi Vs. Rupendra Debi AIR. 1953, SCP. 198 to find out whether an adjudication in a particular proceeding is a judgment or not namely (1) whether it terminates the suit or proceeding ; and (2) whether it affects the maries of the controversy between the parties in the suit itself. If either of these conditions is complied with, then it is a judgment But it it is only an adjudication on an application which is nothing more than a step to wards obtaining a final adjudication in the suit it is not a judgment at ail. The Supreme Court applying these tests held that an order transferring a suit from one Court to another is not a judgment as it does not affect the merits of the controversy between the parties in the suit nor determine or dispose of the suit on any ground. In Central Brokers vs. Ramnarayana Poddar & Co. AIR. 1954, Mad P. 1057 (FB) it was held that an order made under Sec. 10 C.P.C. staying the trial of a suit is not a judgment within the meaning of Clause 15 of the Letters Patent.

In this case what the learned Judge has done is to direct notice returnable in ten days. The meaning of such an order is that the petition is adjuourned for hearing till after the notice served on the party is returned and the party appears before the Court in response to that notice. It is impossible to argue that an order merely adjourning a case especially for a short period of ten days amounts to a judgment. We do not construe an order directing notice as an order rejecting an application for interim stay, The Court by directing notice merely adjourns the matter to a future date so that it may consider the submissions made by the other side to the application made by the petitioner. The Writ appeal is therefore dismissed as not maintainable.