L.P.A (W.P.) No 14 of 1981 vs .

Dr. Anand, J.—ThisLetters Patent Appeal is directed against an order passed by a Single judge of this court (Acting Chief Justice) on 3rd

December 1981.

Some facts which have given rise to this appeal may first be noticed. Respondent No: 3 herein, granted an extension in service to Respondent

No: I for a period of six months from the date of his superannuation. The appellant claiming to be first in the que of promotion to the post which

respondent No: 1 had been holding: challenged the grant of extension before respondent No 2 : who stayed the operation of the order of

respondent No : 3. Aggrieved, by the order of respondent No : 2 staying the operation of the order granting extension, respondent No : I filed

Writ Petition No : 625 of 3981 along with an application seeking stay of the operation of the order of respondent No. 2. On 5.11.81 Kotwal J.

issued a notice to the respondent to show cause why the petition be not admitted. Notice was also issued in the stay matter. Objections to the

admission of the petition were filed by the appellant and respondents 3 and 4 herein. In the objections it was stated that respondent No, 1 had

retired from service on 311081, on superannuation, and had been relieved from duty and his charge had been taken over by Shri Bansi Lal with

effect from 1.1181 F. N. On 3rd December, 1981 the Acting Chief Justice admitted the writ petition to hearing and made the following order :

Heard learned counsel for the parties.

Till the final disposal of the writ petition, the operation of the impugned order of stay, is stayed, and it is directed that the petitioner shall be allowed

[to hold the post of Assistant Khalaf Warzi Officer, in accordance with the order of the President, Municipal Council, Jammu, 30101981, on the

condition that if the writ petition ultimately fails, he shall be liable to refund the salary and other allowances drawn by him.

The application is disposed of accordingly,

It is against this order that the appellant is aggrieved and has filed this Letters Patent Appeal,.

Learned Counsel for respondent No : 1 has raised a preliminary objection to the maintainability of this appeal. It is argued that the impugned

order of the learned Single Judge being only an order of interim stay is not a 'judgment' within the meaning of clause 12 of the Letters Patent and,

therefore, the appeal is not competent. Reliance in this behalf is placed on AIR 1976 H. P. 61.

Mr. Sethi has met this objection by urging that even an interim order which affects valuable rights of one of the parties to the proceeding is a

'Judgment' and that the expression ""judgment"" is not limited to a final order determining the proceedings. It is argued that the impugned order

affects vital and valuable rights of the parties and is, therefore, a 'judgment'. Mr. S. D. Sharma. The learned Addl. Advocate General has also

supported the view point urged by Mr. Sethi.

For what shall follow, we are of the opinion that the preliminary objection has no force and cannot be allowed to prevail.

The Latters Patent of the High Court having made no attempt to define what a judgment is. However, the meaning and scope of the expression

'judgment', within the meaning of clause 12 of the Letters Patent has come up for consideration by this court in a number of cases and a reference

as also the pronouncement of other courts and the Supreme Court of India in this behalf would be advantageous.

In Abdul Sanrad and others Vs. The State of J&K AIR 1969 J&K 52 a Division Bench of the court after reviewing a catena of authorities,

starting with the judgment in The Justices of the Peace for the Town of Calcutta (1872) 8, Bengal Law Report 433, opined that an order, even if it

does not finally dispose of a suit protantp is a 'judgment' if it determines some vital rights of the parties in regard to the matter in controversy. It was

further observed :

The legal position that emerges, therefore, is that orders of the character specified in Section 104 and Order 43, Rule I Civil P. C. excepting

clause (JJ) thereof, would be construed as judgments and an appeal against any one of such orders would lie to the ......... Division Bench of the

High Court notwithstanding the fact that it is passed by one of the judges of the High Court sitting on the original

Again, in Kaniz Fatisna aad ors. Vs. Khushia and others 1965 K. L. J. 244, while considering the ambit aqd scope of the expression judgment'

in clause 12 of the Latters Patent, a Division Bench opined thus :

A bare look at the authorities cited above and other authorities cited therein would show that the term judgment under the Letters Patent has to be

construed rather liberally. No hard and fast rule can be laid down as to what can be considered to be a judgment and what a simple order. This

determination depends upon the circumstances of a particular case. But on a perusal of the case law on the subject it can safely be held that an

order which decides an important issue between the parties affecting the merits of a case should be considered a judgment.

The said expression also came up for consideration in Karam Singh Vs. State of J and K and others AIR 1977 J&K 29 and relying upon AIR

1969 J&K 52, the Bench held that an order of a Single Judge will amount to a 'judgment' under clause 12 of the Letters Patent, if that order finally

determines some claim or right of the aggrieved party, irrespective of the fact whether the said order is made in the main cause or suit or in the

proceedings incidental or ancillary thereto.

A Full Bench of the Delhi High Court in Begum Aftab Zamaaj Vs. Sferi Lal Chand Kkairaa AIR 1969 Delhi 85 explained the ambit and scope

of the expression 'judgment' within the meaning of clause 10 of the Letters Patent (Lahore) in the following words ;

We feel that we have to construe the word ""judgment"" in section 10 of the Act in its own context and in the background of its own statutory

scheme and that the ratio of the Privy Council decision merely goes to suggest that the word ""judgment"" as used in the Letters patent may not be

restricted to the literal definition of the expression ""judgment"" as contained in the Civil P/C. The Letters patent, when providing for appeals from

judgments, in our view, contemplate judgments which have both the effect of a decree as defined in the Code and of such order as may affect the

merits of a controversy between the parties by determining some disputed right or liability. A judgment may thus be either final or preliminary or

interlocutory. In order to decide whether an adjudication should be treated as a ""judgment"" within the meaning of clause 10 of the Letters Patent,

we feel that regard should be had not to the form of the adjudication but to its effect upon the suit or the civil proceeding in which it is made. If its

effect, whatever its form and whatever the nature of the proceeding in which it is made, is to put an end to the suit or proceeding, the adjudication

is indisputably a ""judgment"" within the meaning of this clause. Other decisions or determinations adjudicating upon a disputed controversy on the

merits in a suit or proceeding may also appropriately fall within the contemplation of the word ""judgment"". It is not possible to lay down any definite

rule which would meet the requirements of all cases and all that we may say is that in determining whether an order or decision constitutes a

judgment"" or not, the Court has to take into consideration the nature of the order and its effect upon the suit or the civil proceeding in which it is

made. Each case would thus depend on its own peculiar facts and circumstances.

In Shanti Kumar R. Canji. Vs, The Home Insarancc Co. of New York AIR 1974 S. C. 1719, after a detailed discussion about the meaning of

the expression 'Judgment' within the meaning of clause 15 of the Letters patent (Bombay) their lordships opined that in order to find out whether an

order is a 'judgment' within the meaning of clause 15 or not, what is required to be found is whether the order affects the merits of the action

between the parties by determining some right or liability between them. According to their Lordships nature and affect of the order has to be

examined in order to ascertain whether there has been determination of any vital right or liability. If the order affects the merits of the controversy

between the parties, then irrespective of the stage of the proceeding at which such an order is made, it would be a 'judgment'.

A Full Bench of the Calcutta High Court in Nurul Hoda and others Vs. Amir Hasan and another AIR 1972 Calcutta 449 suggested the

following tests for considering whether a Particular order amounts to a 'judgment' or not :

(3) Whether the, order in question put's an end to the proceeding so far as the Court dealing with it is concerned in which the order was sought

and made, (ii) the order must involve determination of some right or liability affecting the merits, (iii) an adjudication or a decision, which is not

anything more than a step towards obtaining the final adjudication on the merits of the dispute in the proceeding is not judgment within the meanirg

of Letters Paten, (iv) where the decisjon involves adjudication on the question of limitation or jurisdiction of the Court, in certain cases, such

decisions would amount to judgment.

In State of H. P. and another Vs. Ajit Kumar AIR 1976 H. P. 61 on which reliance has been placed by Mr. Gupta Division Bench of that

court held that no appeal lies to Division Bench of the High Court under clause 10 of the Letters Patent against an interim stay order granted by a

Single Judge in Writ proceedings. However, R. S. Pathak C.J. (as his lordship then was) in his separate. though concurring judgment, obsened as

follows:

The interim order made by the learned Single Judge against which the present appeal has been preferred does not dispose of the suit and cannot

be said to determine any rights in controversy between the parties. By such an order the Court merely provided for a temporary equilibrium

between the parties pending the determination of the respondent's rights in controversy in the writ petition.

Thus, in terms the court held that if an order, is aimed only at maintaining equilibrium between the parties pending determination of the rights of

the parties in the controversy, it would not be a ""judgment"" but if the order, even if made at the interim stage, determines some vital issue or affects

valuable right of any of the parties in the controversy it would be a 'judgment'. The controversy it appears has now been categorically set at rest by

the Supreme Court in Shah Babulal KtiimjS Vs. Jayafeen D. Kania and another AIR 1981 S. C. 1786 wherein after a review of various judgments

their lordships observed :

In order to determine whether an order passed by a trial Judge can be said to be a 'judgment' the following considerations must prevail with the

Court :

That the Trial Jndge being a senior Court with vast experience of various branches of law occupying a very high status should be trusted to pass

discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders

passed by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other

cannot be treated as a judgment; otherwise the appeilate court (Division Bench) will be flooded with appeals, from all kinds of orders passed by

the Trial Judge. The court must give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes

must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. That the interlocutory order in order

to be a judgment mast contain the traits and trappings of finality either when the order decides the question in controversy in an ancillary

proceeding or in the suit itself or in a pail of the proceedings."" (Emphasis ours)

and went on to add :

Whenever a trial Judge decides a controversy which affects valuable right of one of the parties, it must be treated to be a judgment, within the

meaning of the Letters Patent"". and then held ""Thus, in other words every interlocutory order cannot be regarded as a judgment but only those

orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the

party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as

judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.

Thus from a review of the aforesaid judgments it clearly emerges that the expression 'Judgment' within the meaning of Clause 12 of the Letters

Patent implies an order which effectively decides some right or liability in controversy between the parties to the main proceeding, irrespective of

the fact whether such an order is final or made at any interlocutory stage. The nature of the order will have to be examined to ascertain whether

there has been determination of any right or liability, where an order affects the merits of the action between the parties by determining some vital

issue or some right or liability then the order would be a 'judgment' within the meaning of clause 12 of the Letters Patent. Thus, the nature of the

order passed and its effect is the determinative of the nature of the order to find out whether or not it is a 'judgment'. It, therefore, follows that if an

order is made at the interim stage only with a view to maintain equilibrium between the parties during the pendency of the proceeding such an order

would not be a 'judgment' and would not be appealable, unless while maintaining equilibrium some right or liability directly effecting the subject

matter of the suit or the proceeding has also been determined.

Let us apply these broad guide lines to the facts of the present case, which have been noticed in an earlier part of this judgment. It is apparent

that the impugned order was not merely an order designed to maintain equilibrium between the parties during the pendency of the proceedings The

effect of the order, as is manifest from its nature, is that respondent No: 1 was put back into service, even though he had superannuated on

311081 and had been relieved of this duties on 2nd November, 1981. There was a specific prayer made in the writ petition as well as in the stay

application seeking this relief. The learned Single Judge granted that relief, of course not without imposing some conditions, and therefore, in our

opinion, the impugned order, which decided a vital issue affecting the valuable right of respondent No: 1 herein, clearly falls within the ambit and

scope of the expression 'judgment' and an appeal against it under clause 12 of the Letters Patent is competent. The preliminary objection,

therefore, fails and is dismissed.

Coming now to the merits of the case. Argued Mr. R. P. Sethi, learned counsel for the appellant, that looking to the nature and affect of the

impugned order which was to put back respondent No: 1 into job after he had been relieved of his duties, the learned Single Judge could not have

made the impugned order at the interim stage, for it finally granted a relief to respondent No. 1 which he had prayed for in the writ petition and that

in any event such an order could not have been made without proper investigation. It is further urged that the impugned order has vitally affected

the rights of the appellant and since it gives no reasons, it can not be sustained. However, according to Mr. Gupta, the High Court is competent to

make an interim order not only for maintaining equilibrium between the parties but also for maintaining status quo ante in appropriate cases, during

the pendency of a writ petitions

In our opinion, the High Court has the power to make interim orders directing the maintenance of status quo ante while hearing a,, writ petition,

at an interim stage, where the interest of justice so warrants. Such and interim order is to be made in aid of justice and to prevent miscarriage of

justice. Support for this view is, available from a judgment of a Bench of five learned Judges in the Supreme 'Court ""presided over by Kania Chief

Justice in the State of Orissa Vs. Marian Gopal Rungta AIR 1952 SC 12. Their lordships : opined that an interim relief could be grantel by the

High Court in aid of the main relief which may be available to a party on final determination of the petition and that in appropriate cases it was open

to the High Court to make a suitable interim order directing the maintenance of status quoante. The, following observations of their lordships make

this position clear :

In our opinion, Art 226 cannot ; be used for the purpose of giving interim relief as the only and final relief on the,, application as the High Court

has purported to do. The directions have been given here only to circumvent the provisions of S. 80 Civil P. C. and in our opinion that is not within

the scope of Art 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final

determination of his rights in a suit or proceedings. If the Court was of opinion that there was no ""other convenient or adequate remedy open to the

petitioners, it might have proceeded to investigate the ease on its merits and come to decision as to whether the petitioners succeeded in

establishing that there was an infringement of any of their legal rights which entitled them to. a writ of mandamus, or any other directions of 3 like

nature; arid .pending,; such determination it might have made:;a suitable interim order for maintaining the status quo ante

Thus, it stands settled that ; even at the interim stage the High Court can grant an order in appropriate cases for maintaining status quo ante

pending the disposal of the writ petition, though this power is to be exercised sprangly.

In the instant case, respondent No. 1 had obtained an order of extension of his service from his employer, the municipal council. That order

was stayed by respondent No. 2 and the order of stay was challanged by respondent No. 1 through the writ petition. Since respondent No. 1 had

been relieved from service, the admission of this writ petition would have been meaningless unless an order directing maintenance of status quo

ante had been made. Had the writ petition not been admitted, it would have been a different matter but after admitting the writ petition, if the order

maintaining status quo ante had not been made, it would have rendered the order admitting the writ petition as a futile order. The injury which could

then have been done to respondent No, 1 would have been great and even irreparable. On the other hand, by making the impugned order with the

condition that if the writ petition ultimately failed, respondent No. 1 shall be liable to refund salary and other allowances drawn by him to

respondents 3 and 4, the interest of respondents 3 and 4 had been adequately safe guarded. Of course, if Shri Bansi Lal to whom the charge of

respondent No. 1 had been given had made any grievance about the making of the impugned order, the position may have been different as the

balance of convenience would have more probably tilted in his favour rather than in favour of respondent No. 1, but the same cannot be the

position when challenge is made by the appellant and not Bansi Lal. So far as the appellant is concerned, he had not been promoted as yet and the

charge had not been given to him. He, therefore, had not acquired any vested right in the post which was being held by respondent No. 1. The

appellant had only a right to be considered for promotion and the impugned order in no way takes away that right. Respondents 3 and 4 have

every right to consider the case of the appellant for promotion to the post of Assistant Khalaf Warzi Officer and even to select him for the post, but

till he is selected, the interest of justice leans in favour of respondent No: 1 to hold the post till the disposal of the writ petition.

Thus, keeping in view the balance of convenience, in our opinion, the learned Single Judge was justified in ordering the maintenance of status

quo ante and in directing that respondent No, 1 be allowed to hold the post of Assistant Khalaf Warzi Officer, in accordance with the order of

respondents 3 and 4 dated 301081 till the disposal of the writ petition.

we do not find much substance in the argument of Mr. Sethi that the impugned order is not a speaking order and is on that account vitiated.

The entire material including the objections of the appellant and respondents 3 and 4, was before the learned Single Judge and while making the

impugned order, we have no reason to believe, that the said material was not taken note of. As a matter of fact the tenor of the impugned order

itself shows that the impugned order was made by the learned Single Judge in view of those objections and not in ignorance of them. In our opinion

the learned Single Judge advisely did not express his opinion on the merits of the case, one way or the other, as any such expression of opinion

could have prejudiced the case of the either party.

For what we have said above, we do not find any reason to interfere with the impugned order of the learned Single Judge and dismiss this

apeal No. costs.