Jodhpur Sahakari Upbhokta Wholesale Bhandar vs Badri Nath Kalla

This special appeal is directed against the interim order dated 12th May, 1982 passed by the learned Single Judge in S.B. Civil writ petition No. 119/81. The writ petition aforesaid had been filed by respondent No. 1 and the learned single Judge by his order dated 12th May, 1982 has stayed the operation of the order (Annexure 7 to the writ petition) dated June 4, 1981 and has further directed the appellant to pay the last salary drawn by respondent No. 1 till the disposal of the writ petition. In the order aforesaid, it has also been directed that it would be open to the appellant to take work or not to take work from respondent no. 1 and that if the appellant does not propose to take wrok from him, it is entirely on his choice but it must pay him the last salary drawn.

We have heard Shri B.C. Mehta, the learned Counsel for the appellant and Shri M. Mridul, the learned Counsel for respondent no. 1.

It has been laid dowu by this Court in a number of cases that special appeal u/s 18 of the Rajasthan High Court Ordinance, 1949 is not maintainable against the interlocutory order passed by the learned single Judge of this Court Shri Mehta has, however, submitted that the position has been changed in view of the decision of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, and that in view of the said decision of the Supreme Court, special appeal is maintainable in the present case.

The aforesaid decision of the Supreme Court has been considered by this Court in Mahesh Kishore v. Bhagat Ram D.B. Civil Special Appeal No. 231/81 decided on 29nd March, 1982 and it has been observed that in the said decision, their Lordships of the Supreme Court have made a clear distinction regarding orders passed under Article 226 of the Constitution and that the said decision would not be applicable in those cases Similarly, in M/S Gulam Abbas Kamruddin v. State and Ors. (D.B. Civil Special Appeal No. 500/ 82 decided on 24th August, 1982, after considering the decision of and the Supreme Court in Shah Babualal Khimji''s case (supra) it has been laid down that the principles laid down were not applicable to the interim orders and inter locutory orders passed on stay petitions filed in the writ petition under Article 226 of the Constitution. In the circumstances, we are of the opinion that the decision in Shah Babulal Khimji''s case (supra) does not assist the appellant and the appeal cannot be held to be maintainable.

This appeal is, therefore, dismissed as not maintainable.