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Judgment
107 paragraphs · 10,281 wordsDevendra Kumar Upadhyaya, CJ
CHALLENGE
This intra-court appeal assails the order dated 24.04.2026 passed by learned Single Judge in W.P.(C) 5608/2026 instituted by the respondent whereby a direction has been issued by learned Single Judge that the appellant no.2 shall not proceed further with the show cause notice dated 17.04.2026 till the next date of hearing.
The respondent, by instituting the writ petition before the learned Single Judge, sought a writ of certiorari quashing, setting aside and cancelling the show cause notice dated 17.04.2026 issued by appellant no.2 under Section 4(1) and 4(2)(b)(ii) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 [hereinafter referred to as the 'P.P. Act']. A further prayer has also been made in the writ petition to quash, set aside and cancel the proceedings initiated by issuing the said notice dated 17.04.2026.
FACTS
The show cause notice dated 17.04.2026 has been issued by the appellant no.2 to the respondent in terms of the provisions contained in Section 4 of the P.P. Act, calling upon it as to why the order of eviction should not be made. The notice further requires the respondent to appear in person or through an authorised representative along with evidence, which the respondent intends to provide in support of the show cause and also for a personal hearing. It further stipulates that if the respondent fails to appear on the date fixed, the matter shall be proceeded ex-parte.
The show cause notice has been issued in respect of a lease granted by the appellant no.1 in favour of the respondent on 08.03.1926, pertaining to a plot of land admeasuring 84.484 acres, which is more explicitly described in the schedule appended to the Lease Deed dated 08.03.1926. The lease was granted for the use of the land as "Race Course" for a period of 25 years. Clause 6 of the lease provides that the term of the lease can be extended for a further period of 25 years from the expiration of the term of the lease. The lease was extended from time to time and stood determined, as per the show cause notice on 31.12.1994 by afflux on time on expiry of the last extension. It is also to be noticed that on 25.06.1985, a substantial area of the land in question was resumed by the appellant and allotted for certain public purposes, including allotment to the Ministry of Defence. However, the respondent has continued to be in occupation of the remaining portion of the land.
On 25.10.1999, treating the occupation of the respondent as unauthorised on expiry of the last extension of the term of lease on 31.12.1994, a show cause notice was issued to the respondent under Section 4 of the P.P. Act, calling upon the respondent to show cause as to why an order of eviction and recovery of dues, including damages for unauthorised occupation, may not be passed.
The said show cause notice dated 25.10.1999 was, however, challenged by the respondent by instituting the proceeding of W.P.(C) 7822/1999 before this Court and in these proceedings initially this Court had granted a stay on further proceedings before the Estate Officer. During the pendency of the said writ petition, the respondent is said to have submitted a representation dated 19.12.2011 seeking extension/renewal of the lease in respect of the land in question.
W.P.(C) 7822/1999 was finally disposed of by a learned Single Judge of this Court vide his order dated 09.07.2012, whereby the show cause notice dated 25.10.1999 was quashed and a liberty was given to the appellant to decide the representation dated 19.12.2011 preferred by the respondent. It was also provided that in the event of rejection of the representation dated 19.12.2011, the appellant would be free to determine the lease and re-enter the subject premises as the respondent was said to be in arrears of ground rent, etc. Pursuant to the order dated 09.07.2012 passed by this Court in W.P.(C) 7822/1999, the representation of the respondent, dated 19.12.2011 was processed and a letter of demand dated 22.07.2013 was issued to the respondent in respect of the outstanding dues whereby total amount recoverable from the respondent was shown to be Rs.3,48,82,723/-. The respondent deposited the said amount of Rs.3,48,82,723/- on 23.08.2013 and 26.08.2013, which was received by the appellant towards dues as mentioned in the letter of demand dated 22.07.2013.
As per the appellant, the request of the respondent for extension/renewal of the lease was examined; however, it was not acceded to in view of the requirement of the subject land for government/public purposes, including defence and security considerations, and accordingly, no further extension/renewal of the lease was granted in favour of the respondent. It is also stated on behalf of the appellant that a notice was issued on 13.11.2017 to the respondent calling upon it to show cause as to why proceedings for eviction should not be initiated in accordance with law. Another notice is said to have been issued by the appellant to the respondent on 09.03.2022 for alleged breaches of terms and conditions governing the subject premises, including misuse of the land and alleged unauthorised construction.
On 12.03.2026, an eviction/vacation notice was issued to the respondent by the appellant to vacate the land in question and handover its peaceful possession to the appellant. The said notice clearly stated that failure to comply would entail initiation of appropriate proceedings for eviction and recovery of dues in accordance with law. A civil suit, being CS (OS) 253/2026 was instituted by the respondent before this Court, challenging the validity and legality of the notice dated 12.03.2026 and seeking certain other reliefs in respect of the proposed action of eviction. The said suit was disposed of by this Court on 09.04.2026. This Court, in its order dated 09.04.2026, while disposing of the suit, has clearly recorded that any action for dispossession of the respondent from the subject premises would be taken only in accordance with due process of law. It is thereafter that the notice impugned in the writ petition, dated 17.04.2026 has been issued by the appellant no.2 to the respondent under Section 4(1) and 4(2)(b)(ii) of the P.P. Act. The notice dated 17.04.2026 has been challenged by the respondent, as stated above, by instituting the W.P.(C) 5608/2026 before the learned Single Judge and it is in the proceeding of this writ petition that the impugned order has been passed on 24.04.2026, whereby it has been directed that proceedings pursuant to the show cause notice dated 17.04.2026 shall stand deferred. It is this order passed by learned Single Judge, which has been assailed by the appellants by instituting the proceedings of the instant intra-court appeal.
ARGUMENTS ON BEHALF OF APPELLANTS
Mr. Chetan Sharma, learned Senior Advocate and Additional Solicitor General of India, representing the appellants, has submitted that the writ petition against the show cause notice issued under Section 4 of the P.P. Act ought not to have been entertained by the learned Single Judge under Article 226 of the Constitution of India. He has further argued that all opportunity is available to the respondent to reply to the show cause notice issued by the Estate Officer, wherein all pleas which may be available to the respondent can be taken, including the challenge to the issuance of the show cause notice itself and therefore, exercise of jurisdiction by the learned Single Judge in the writ petition while passing the impugned order, is erroneous.
Referring to a judgment of a Division Bench of this Court in Escorts Heart Institute & Research Centre Ltd. v. DDA & Anr., 2007 SCC OnLine Del 1180, Sh. Sharma has argued that in view of the definition of the expression, "unauthorised occupation" occurring in Section 2(g) of the P.P. Act, the respondent is an unauthorised occupant of the premises in question and therefore, the appellant has taken recourse to appropriate process of law seeking eviction of the respondent by invoking the jurisdiction of the Estate Officer under Section 4 of the P.P. Act. His submission, thus, is that the show cause notice, which is under challenge before learned Single Judge, is lawful and accordingly, the respondent needs to submit a reply to the said show cause notice and participate in the proceedings.
Sh. Sharma has also argued that ordinarily challenge to a show cause notice issued by the competent authority under a statute cannot be made in writ jurisdiction and since the show cause notice has been issued in accordance with law and jurisdiction of the Estate Officer has rightly been invoked by the appellant no.1, interference with the proceedings pursuant to the said show cause notice by passing the impugned order, whereby the proceedings have been deferred, is unwarranted and uncalled for. He has further argued that Escorts Heart Institute (supra) has considered the Hon'ble Supreme Court's judgment in Express Newspapers Private Limited v. Union of India, (1986) 1 SCC 133 and also a Five Judges Bench Judgment of Hon'ble Supreme Court in Ashoka Marketing Limited v. Punjab National Bank, AIR 1991 SC 855 and has held that the expression "unauthorized occupation" as used in P.P. Act includes a person, who is found to have occupied any public premises without lawful authority as well as those whose occupation was permissive at the inception and subsequently ceased to be authorised.
Submission on behalf of the appellant no.1 is that the definition of the term "unauthorised occupation" as occurring in Section 2(g) of the P.P. Act covers continuance of occupation by any person of any public premises after the grant or transfer has expired or determined for any reason whatsoever. It is the argument of Sh. Sharma that admittedly the term of the lease has expired on 31.12.1994 and in absence of any extension of the term of the lease or its renewal or grant of a fresh lease, the respondent is an unauthorised occupant in terms of Section 2(g) of the P.P. Act and therefore, the jurisdiction of the Estate Officer has rightly been invoked under Section 4 of the P.P. Act.
Reference has also been made on behalf of the appellants to a judgment of this Court in Anant Raj Agencies Pvt. Ltd. v. Delhi Development Authority, 2012 SCC OnLine Del 6406. In Anant Raj Agencies (supra), a suit was instituted before the civil court, which was dismissed on a preliminary issue that the jurisdiction of the civil court was barred under the provisions of the P.P. Act. In the said case, the plaintiff claimed to have purchased the suit property under a compromise decree, and it was pleaded that the defendant - Delhi Development Authority had initiated the proceedings before the Estate Officer under the P.P. Act, whereupon a show cause notice was issued calling upon the plaintiff to show cause as to why the plaintiff should not be evicted from the suit premises. In these facts, the learned trial court held that the civil court does not have the jurisdiction in view of Section 10 read with Section 15 of the P.P. Act, which clearly stipulates that no courts shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any public premises.
The plaintiff in Anant Raj Agencies (supra) challenged the order of the trial court whereby the suit was dismissed on the ground that it was not maintainable. While dismissing the appeal, this Court inter alia observed that the jurisdiction of civil courts is barred from entertaining any suit and further that notice issued by the Estate Officer under Section 4 of the P.P. Act is an order of taking cognizance of the matter. The Court further held that once unauthorised occupant of any public premises is issued a notice under Section 4 of the P.P. Act for showing cause and adducing evidence before the Estate Officer, he is required to show his cause and produce the defence to the Estate Officer, but he cannot come to the civil court for restraining the Estate Officer from proceeding pursuant to the notice issued under Section 4 of the P.P. Act. Sh. Chetan Sharma, placing reliance on Anant Raj Agencies (supra), has stated that once a notice is issued under Section 4 of the P.P. Act by the Estate Officer, the only course open to the noticee is to respond to the notice and therefore, according to Sh. Sharma, learned Single Judge has completely ignored all these aspects of the matter and has proceeded to pass the order deferring the proceedings before the Estate Officer pursuant to the show cause notice.
On behalf of the appellants, it has also been argued that no reason whatsoever, even for the namesake, has been assigned by learned Single Judge while passing the impugned order except observing therein that, "looking at the chequered history of the previous litigation between the parties as noted hereinbefore, and in the peculiar facts and circumstances of the case, this Court is of the considered opinion that the matter requires consideration". It has further been argued that in consonance with the principles relating to the grant of an interim order determination of the issue of a prima facie case, irreparable loss and balance of convenience has not been made, which itself would suffice for this Court to set aside the impugned order passed by the learned Single Judge.
ARGUMENTS ON BEHALF OF RESPONDENT
Mr. Suhail Dutt, learned senior counsel representing the respondent, while opposing the instant appeal, has made the following submissions:-
(i) that the impugned order passed by the learned Single Judge, being purely interlocutory in nature, is not amenable to challenge in the proceedings of the instant intra-court appeal for the reason that under Clause 10 of the Letters Patent, the remedy of intra-court appeal is available only against a judgment passed by learned Single Judge and not against an interlocutory order. In this respect, reliance has been placed by the learned counsel for the respondent on the judgments of the Hon'ble Supreme Court in (i) Shah Babulal Khimji v. Jayaben D. Kania (1981) 4 SCC 8 (ii) Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda, (2006) 5 SCC 399, and (iii) Shyam Sel & Power Ltd. v. Shyam Steel Industries Ltd., (2023) 1 SCC 634. Reference has also been made in support of this submission to the judgment of the Division Bench of this Court in MCD v. Krishan Kumar, 2025 SCC OnLine Del 316;
(ii) It has also been argued on behalf of the respondent that there is no absolute bar for this Court to entertain a writ petition under Article 226 of the Constitution of India challenging a show cause notice. In this respect, it has been argued that ordinarily challenge to a show cause notice is not available before this Court in writ jurisdiction, however, as laid down by Hon'ble Supreme Court in J. Sri Nisha v. Enforcement Directorate, 2026 SCC OnLine SC 517, interference by this Court in proceeding under Article 226 of the Constitution of India at the stage of show cause notice is permissible in certain circumstances such as, (i) where the notice suffers from patent lack of jurisdiction, (ii) where it reflects non application of mind, (iii) show cause notice is issued with a pre-determined or pre-meditated approach and (iv) in case the show cause notice amounts to abuse of process of law or results in violation of principles of natural justice. It has been argued that in such situations, this Court would be justified in exercising its jurisdiction under Article 226 of the Constitution of India.
Drawing our attention to the order passed by learned Single Judge of this Court on 09.07.2012 in W.P.(C) 7822/1999, which was instituted by the respondent against an earlier show cause notice under Section 10 of the P.P. Act, dated 25.10.1999 it has been stated by learned counsel for the respondent that once the said show cause notice was quashed being patently illegal in law, it was not open to the appellants to have taken recourse to issuing the impugned show cause notice for eviction on the same grounds on which the earlier notice dated 25.10.1999 was issued.
Learned counsel for the respondent has stated that the order dated 09.07.2012, while quashing the earlier notice dated 25.10.1999, has observed that neither the lease was determined nor was there any re-entry and since the notice dated 25.10.1999 was not preceded by determination of the lease as such, the said notice was illegal. His submission is that once a similar notice has been found by this Court in its order dated 09.07.2012 to be bad in law, the fresh notice which is impugned in the writ petition could not have been issued by the Estate Officer under Section 4 of the P.P. Act and issuance of such a notice is nothing but tantamount to abuse of the process of law and also reflects pre-determined and pre-meditated approach by the appellant no.1 in taking recourse to proceedings under Section 4 of the P.P. Act. It is in this respect that reliance has been placed on behalf of the respondents on J. Sri Nisha (supra).
(iii) Basis the law laid down by Hon'ble Supreme Court in J. Sri Nisha (supra), it has been argued on behalf of the respondent that since the show cause notice, which is under challenge before the learned Single Judge, has been issued by the Estate Officer, who patently lacks the jurisdiction to issue such a notice in view of the order of learned Single Judge dated 09.07.2012 and issuance of the notice reflects pre-meditated mind of the appellants, as such the writ petition before learned Single Judge is maintainable and, therefore, the learned Single Judge has rightly passed the impugned order deferring the proceedings pursuant to the show cause notice dated 17.04.2026.
ISSUES
On the basis of the pleadings available on record and the respective submissions made by learned counsel for the parties, the following issues emerge for our consideration and adjudication:
(a) As to whether, the instant intra-court appeal against the impugned order dated 24.04.2026 passed by the learned Single Judge is maintainable and as to whether, the impugned order is a "Judgment" for the purpose of invoking remedy of intra-court appeal under Clause 10 of the Letters Patent.
(b) As to whether, the impugned order passed by learned Single Judge is vitiated, as no reason has been assigned for deferring the proceedings pursuant to the show cause notice dated 17.04.2026, and consequently, the proceedings emanating from the show cause notice have been put to a halt by the impugned order without any reflection in the impugned order of a prima facie case, irreparable loss and balance of convenience.
DISCUSSION AND CONCLUSION
For appropriately deciding issue (a) as culled out above, we need to extract Clause 10 of the Letters Patent constituting the High Court of Judicature at Lahore dated 21.03.1919 which is applicable to this Court. Clause 10 of the Letters Patent reads as under:
"10. Appeals to the High Court from Judges of the Court-
And we do further ordain that an appeal shall lie to the said High Court of Judicature at Lahore 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 the 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 under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, 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, pursuant of Section 108 of the Government of India Act, made on or after the first day of February, one thousand nine hundred and twenty-nine 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 Judges of the said High Court or of such Division Court shall be to Us, Our heirs or Successors in our or their Privy Council, as hereinafter provided."
The jurisdiction of intra-court appeal available in Clause 10 of the Letters Patent has been saved by Section 5 of Delhi High Court Act, 1966 [hereinafter referred to as the'Act, 1966'] which provides that this Court shall have all such original, appellate and other jurisdiction as under the law in force immediately before the appointed day was exercisable in respect of territories by the High Court of Punjab. "Appointed Day" has been defined under Section 2 of the Act, 1966 to mean the day appointed under Section 3.
Section 3 of the Act, 1966 provides that the Central Government, by way of a notification in the Official Gazette, appoint a day and from such day the High Court of Delhi shall come into existence. The notification under Section 3 was issued on 31.10.1966 and, therefore, in view of the provisions contained in Section 5 of the Act, 1966 this Court possess all such original, appellate and other jurisdiction which was exercisable by the High Court of Punjab; thus, this Court exercises the jurisdiction of intra-court appeal by a Division Bench of this Court against the judgment of a learned Single Judge.
Section 10 of the Act, 1966 provides that where a Single Judge of this Court exercises ordinary original civil jurisdiction, an appeal shall lie from the judgment of the Single Judge to a Division Bench of this Court. Section 10 of the Act, 1966, reads as under:
"10. Powers of Judges. -(1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.
(2) Subject to the provisions of sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi."
What is noticeable is that provisions contained in Clause 10 of the Letters Patent, as also in Section 10 of the Act, 1966, provide for an intra- court appeal which lies from the "Judgment" of the Single Judge to a Division Bench of this Court. So far as intra-court appeal against a decision of a learned Single Judge exercising ordinary civil jurisdiction is concerned, the expression "Judgment" has to derive its meaning from the Code of Civil Procedure, 1908 [hereinafter referred to as 'CPC'] [see University of Delhi and Anr. V. Hafiz Mohd. Said & Ors, AIR 1972 Delhi 102, a five-bench judgment of this Court].
The expression "Judgment" occurring in Letters Patent of different High Courts has engaged the attention of Hon'ble Supreme Court on more than one occasions. In Shah Babulal Khimji (supra), the Hon'ble Supreme Court considered the issue, as to when a decision of a Single Judge could be regarded as a "Judgment" within the meaning of the relevant Clause of Letters Patent of the Bombay High Court.
The Hon'ble Supreme Court in Shah Babulal Khimji (supra) laid down certain principles and the first such principle laid down is that though Letters Patent did not define the expression "Judgment", since the Letters Patent was a special law, it would not be appropriate to project the definition of the expression "Judgment" occurring in Section 2(9) of the CPC into the meaning of the said expression for the purposes of Letters Patent. The Apex Court further held that the concept of the "Judgment" as defined in CPC is rather narrow and while defining the expression "decree", the limitation which are maintained in Section 2(9) of the CPC cannot be imported into the definition of the expression "Judgment" for the purposes of the Letters Patent.
It has been held that the expression "Judgment" for the purposes of Letters Patent would receive a wider and more liberal interpretation than the expression "Judgment" occurring in the CPC. The Apex Court in Shah Babulal Khimji (supra) has also held that a "Judgment" imports a concept of finality in a broader and not in a narrower sense, and further that a"Judgment" can be of three kinds: (i) final judgment, (ii) a preliminary judgment and (iii) an intermediary or interlocutory judgment.
The relevant observations in this regard have been made in paragraph 113 of the report in Shah Babulal Khimji (supra), which is extracted herein below:
"113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word "judgment" as used in clause 15 of the letters patent because the letters patent has advisedly not used the terms"order"or "decree" anywhere. The intention, therefore, of the givers of the letters patent was that the word "judgment" should receive a much wider and more liberal interpretation than the word "judgment" used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the letters patent. It seems to us that the word "judgment" has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a judgment can be of three kinds:
(1) A final judgment.-A judgment which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the judgment, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a judgment within the meaning of the letters patent and even amounts to a decree so that an appeal would lie from such a judgment to a Division Bench.
(2) A preliminary judgment.-This kind of a judgment may take two forms-(a) where the trial Judge by an order dismisses the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trial Judge would be a judgment finally deciding the cause so far as the Trial Judge is concerned and therefore appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to maintainability of the suit, e.g., bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under Section 80 and the like, and these objections are decided by the trial Judge against the defendant, the suit is not terminated but continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore be construed to be a judgment so as to be appealable to a larger Bench.
(3) Intermediary or interlocutory judgment.-Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the letters patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings 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 proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the letters patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an order passed by the trial Judge would not amount to a judgment within the meaning of clause 15 of the letters patent but will be purely an interlocutory order. Similarly, suppose the trial Judge passes an order setting aside an ex parte decree against the defendant, which is not appealable under any of the clauses of Order 43 Rule 1 though an order rejecting an application to set aside the decree passed ex parte falls within Order 43 Rule 1 clause (d) and is appealable, the serious question that arises is whether or not the order first mentioned is a judgment within the meaning of letters patent. The fact, however, remains that the order setting aside the ex parte decree puts the defendant to a great advantage and works serious injustice to the plaintiff because as a consequence of the order, the plaintiff has now to contest the suit and is deprived of the fruits of the decree passed in his favour. In these circumstances, therefore, the order passed by the trial Judge setting aside the ex parte decree vitally affects the valuable rights of the plaintiff and hence amounts to an interlocutory judgment and is therefore, appealable to a larger Bench."
What is relevant to note here is that the orders listed in Clauses (a) to (w) in Order XLIII Rule 1 of the CPC contain the attributes of finality and would hence be judgments even for the purposes of the Letters Patent. We may also observe that there may be interlocutory orders which are not listed in Order XLIII Rule 1 of the CPC, but may still have an attribute of finality. It is in this background that the Hon'ble Supreme Court in Shah Babulal Khimji (supra), in paragraph 113 has held that there may be interlocutory orders not listed in Order XLIII Rule 1 of the CPC but still may have trappings of finality, in the sense that such interlocutory orders may adversely impact available rights of the parties or decide an important aspect of the trial in an ancillary proceeding.
The Apex Court has further proceeded to observe that such an order can be treated as a "Judgment" wherein the adverse impact on the party concerned must be direct and immediate rather than indirect or remote. In Shah Babulal Khimji (supra) it has also been held that during course of proceedings of a case, the learned Single Judge may pass various orders which are procedural or routine in nature and further, even if such orders cause some inconvenience to a party, the same would probably be interlocutory and would not be regarded as "Judgment", so as to make such orders passed by learned Single Judge amenable to challenge in an intra- court appeal.
In paragraph 115 of the report in Shah Babulal Khimji (supra), the Apex Court has further held that every interlocutory order cannot be regarded as a judgment; only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and cause serious injustice to the parties concerned. Such observations in Shah Babulal Khimji (supra) have been made in paragraph 115 of the report, which reads as under:
"115. 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."
Accordingly, based on the principle laid down in Shah Babulal Khimji (supra), what we can safely observe is that an interlocutory order to be a"Judgment" should contain trappings of finality, either when it decides the questions in controversy in ancillary proceedings, main proceedings or in the part of a proceeding.
As laid down by Hon'ble Supreme Court in Central Mine Planning and Design Institute Ltd. v. Union of India, (2001) 2 SCC 588 to determine the question if an interlocutory order falls within the meaning of "Judgment"for the purposes of Letters Patent, the test which needs to be applied is as to whether, the order is a final determination, affecting vital and valuable rights and obligations of the parties concerned. The Court further proceeds to observe that this needs to be ascertained on the facts of each case.
In Central Mine Planning and Design Institute (supra), the Hon'ble Supreme Court was examining Clause 10 of the Letters Patent applicable to Patna High Court and has extensively referred to the judgment in Shah Babulal Khimji (supra), and has also mentioned that relevant Clauses of Letters Patent of Calcutta, Bombay and Madras are in iisdem terminis (in the exact same words) with Clause 10 of Letters Patent of Allahabad, Patna, Punjab and Haryana and Madhya Pradesh High Courts.
Central Mine Planning and Design Institute (supra) concludes that to determine as to whether, an interlocutory order passed by learned Single Judge can be regarded as a "Judgment" for the purposes of Letters Parent, the test to be applied will be as to whether, the order is a final determination affecting vital and valuable rights and obligations of the parties concerned and this has to be ascertained from the facts of each case. Paragraph 14 of the Central Mine Planning and Design Institute (supra) is extracted herein below:
"14. In the instant case, we are concerned with the last mentioned category. From the above discussion, it follows that to determine the question whether an interlocutory order passed by one Judge of a High Court falls within the meaning of "judgment" for purposes of Letters Patent the test is:
Whether the order is a final determination affecting vital and valuable rights and obligations of the parties concerned. This has to be ascertained on the facts of each case."
Reference may also be had to the law laid down by Hon'ble Supreme Court in Midnapore (supra), where paragraph 15 of the report reads as under:
"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.
For appropriately ascertaining the correct meaning of the expression"Judgment" occurring in the Letters Patent, we may also refer to the observations made by the Hon'ble Supreme Court in paragraph 16 of Midnapore (supra), which is extracted here in below:
"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 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 finality in regard to 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 the purpose of filing appeals provided under the Letters Patent.
Midnapore (supra) has reiterated what was already laid down in Shah Babulal Khimji (supra) that the expression "Judgment" occurring in Letters Patent will cover not only the judgments as defined in Section 2(9) of the CPC and orders enlisted in Order XLIII Rule 1 of the CPC but also other interlocutory orders which though, may not finally and conclusively determine the rights of the parties but may have finality in regard to some co- lateral matter, which will affect the vital and valuable rights and obligations
of the parties.
It has been held that the order which finally decides a question or issue in the main case, orders which finally decide an issue which materially and directly affects the final decision in the main case and orders which finally decide a co-lateral issue or question, which is not the subject matter of the main case will be "Judgments" for the purposes of filing appeals under the Letters Patent, however, the routine orders passed to facilitate the progress of the case and orders which may cause some inconvenience or some prejudice but do not finally determine the rights and obligations of the parties will not be "Judgment" for the purposes of Letters Patent.
Hon'ble Supreme Court in Shyam Sel & Power Ltd. (supra) has summed up as to which decision of a learned Single Judge will amount to "Judgment" so as to invoke the jurisdiction of intra-court appeal by a Division Bench. Referring to Shah Babulal Khimji (supra), the Shyam Sel & Power Ltd. (supra) arrives at the same conclusion that there may be interlocutory orders, which are not covered by Order XLIII Rule 1 CPC but if such orders possess the characteristics and trappings of finality inasmuch as such orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding, such decision will be"Judgment" for the purpose of letters patent. Paragraphs 18 and 19 of Shyam Sel & Power Ltd. (supra) are extracted hereinbelow:-
"18. It could thus be seen that though this Court in Shah Babulal Khimji [Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8] has held that the term "judgment" used in letters patent could not be given a narrower meaning as is given to the term "judgment" used in CPC and that it should receive a much wider and more liberal interpretation, however, at the same time, each and every order passed by the trial Judge could not be construed to be a "judgment" inasmuch as there will be no end to the number of orders which would be appealable under the letters patent. It has been held that the word "judgment" has undoubtedly a concept of finality in a broader and not in a narrower sense. It has been held that where an order vitally affects a valuable right of the defendants, it will undoubtedly be treated as a "judgment" within the meaning of letters patent so as to be appealable to a larger Bench.
It has been held in Shah Babulal Khimji [Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8] that most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 CPC and would be "judgments" within the meaning of the letters patent and, therefore, appealable. However, there may be interlocutory orders which are not covered by Order 43 Rule 1CPC but which also possess the characteristics and trappings of finality inasmuch as such orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. It has further been held that however, for such an order to be a "judgment", an adverse effect on the party concerned must be direct and immediate rather than indirect or remote. Various illustrations of interlocutory orders have been given by this Court in Shah Babulal Khimji v. Jayaben D. Kania [Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8] , para 120, which could be held to be appealable. This Court in Shah Babulal Khimji [Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8] held that though any discretion exercised or routine orders passed by the trial Judge in the course of the suit may cause some inconvenience or, to some extent, prejudice to one party or the other, they cannot be treated as a "judgment" unless they contain the traits and trappings of finality. This Court has expressed in para 122 of Shah Babulal Khimji [Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8] that though it had, by way of sample, laid down various illustrative examples of an order which may amount to a judgment, it would not be possible to give such an exhaustive list as may cover all possible areas. This Court, in the facts of the said case, held that an order of the Single Judge refusing appointment of a Receiver and grant of an ad interim injunction was undoubtedly a "judgment" within the meaning of letters patent, both because Order 43 Rule 1CPC applies to internal appeals in the High Court and that such an order even on merits contains the quality of finality and would therefore be a "judgment" within the meaning of Clause 15 of the Letters Patent."
In view of the principle of law in respect of a decision passed by learned Single Judge being "Judgment" for the purpose of Letters Patent, as discussed above, we now need to examine as to whether the impugned order dated 24.04.2026 has to be regarded as "Judgment" so as to maintain this intra-court appeal.
Learned Single Judge while passing the impugned order has discussed in nutshell the case of the appellant as also that of the respondent, and has simply observed that "looking to the chequered history of the previous litigation and in peculiar facts and circumstances of the case, the matter requires consideration and after calling upon the parties to complete their pleadings, has further directed that Estate Officer shall not proceed any further with the show cause notice dated 17.04.2026. The question for our determination, thus, is as to whether the impugned order directing the Estate Officer not to proceed with the impugned show-cause notice causes prejudice and effects any valuable rights of the appellant, though it is an order, which is interlocutory in nature.
As already discussed above, the law as laid down by the Hon'ble Supreme Court is that the expression "Judgment" occurring in letters patent has to be given a wider meaning, and it should not be limited to the meaning of the said expression within the confines of the CPC. It is also noted that such orders to be a "Judgment" for the purpose of Letters Patent, should not be confined to the orders enlisted in Order XLIII Rule 1 of the CPC. The law, thus, is that an intra-court appeal under the Letters Patent would be maintainable even against an interlocutory order if it impacts valuable rights of the parties even in ancillary proceedings.
The impugned order in the instant case as has been passed by learned Single Judge while calling upon the parties to complete their pleadings. So far as the direction issued for completion of pleadings is concerned, such an order cannot be regarded to be a "Judgment" for the purpose of invoking appellate jurisdiction under Letters Patent for the reason that such an order is not only interlocutory but is generally passed to facilitate progression of the proceedings before learned Single Judge.
However, as far as the direction issued by the learned Single Judge in the impugned order directing the Estate Officer not to proceed with the proceedings emanating from the show-cause notice, we may note that on account of the term of the lease having come to an end way back in the year 1994, the term of the lease stood determined and, therefore, it is a statutory right of the appellant no.1 to invoke the provision of Section 4 of the PP Act. We may also note that as laid down by a Coordinate Bench of this Court in Escorts Heart Institute & Research Centre Ltd. (supra), the expression"unauthorised occupation" occurring in Section 2(g) has not to be confined to only a person who is found to have occupied any public premises without lawful authority, but it needs to be extended to those occupants whose occupation was initially permissible at the inception, but subsequently ceased to be authorised. Thus, on the basis of the lease, the respondent was validly in occupation and possession of the subject land; however, once the term of the lease had expired way back in the year 1994, such occupation ceased to be authorised in terms of the provisions of the PP Act.
Section 4 of the PP Act vests a statutory right which provides that if the Estate Officer has information that any person is in unauthorised occupation of any public premises and that such a person should be evicted, he shall issue a notice in writing regarding unauthorised occupation calling upon the person concerned to show cause why an order of eviction should not be made. Thus, remedy of Section 4 seeking eviction of any unauthorised occupant from public premises is a statutory vested right available to the appellant no.1 and if such a course of action is resorted by the appellant taking recourse to the provision of Section 4, any order, may be interlocutory in nature, passed by learned Single Judge restraining the Estate Officer from proceedings any further in the matter, in our opinion, impacts the available statutory right of the appellant and, therefore, for this reason alone the impugned order, as per our opinion, would be a "Judgment" for the limited purpose of invoking the jurisdiction of a Division Bench of this Court under Clause 10 of the Letters Patent.
We are also unable to subscribe to the argument made by learned counsel for the respondent that in the facts and circumstances of the case, the notice dated 17.04.2026 is pre-meditated or amounts to an abuse of the process of law. Section 4 vests a right to seek eviction of an unauthorised occupant, which has statutorily been provided in respect of public premises and if any authority resorts to such statutory recourse, it cannot be said that such recourse would amount to misuse or abuse of the process of law or it is pre-meditated.
So far as reliance placed by learned counsel for the respondent on the order passed by learned Single Judge dated 09.07.2012 passed in W.P.(C) 7822/1999 which was instituted by the respondent against an earlier show- cause notice dated 25.10.1999, is concerned, we may note that said Writ Petition was finally disposed of by the Court quashing the notice and directing the appellant to decide the representation said to have been preferred by the respondent on 19.12.2011, where a prayer was made for extension/renewal of the lease. Pursuant to the said representation dated 19.12.2011, the prayer is said to have been processed by the appellant, however the same was not acceded to, and therefore, a fresh notice under Section 4 of the PP Act has now been issued. It is also noticeable that in the proceedings instituted under Section 4 of the PP Act, the respondent will have the amplest opportunity to explain as to why an eviction order may not be passed. All the grounds and pleas available to the respondent under the law will be permissible to be taken by it, including the ground that the notice is not lawful.
We may also note that prior to institution of the underlying Writ Petition namely W.P.(C) 5608/2026, the respondent had instituted a suit being CS (OS) 253/2026, which has been disposed of by a learned Single Judge of this Court on 09.04.2026, where it has clearly been recorded that any action for dispossession of the respondent from the subject premises would be taken in accordance with due process of law. Prima facie, the subject premises is a public premises and the respondent is unauthorised occupant within the meaning of the said expression occurring in PP Act, however in view of the observations made while disposing of the aforesaid suit vide order dated 09.04.2026, if for dispossession of the respondent recourse under Section 4 of the PP Act has been taken by the appellant, it cannot be said that such process is not in accordance with due process of law.
Much emphasis was laid by learned counsel for the appellants on Express Newspapers Private Limited (supra), however the Division Bench of this Court in Escorts Heart Institute & Research Centre Ltd. (supra) referring to the Express Newspapers Private Limited (supra), has unambiguously held that the expression "unauthorised occupation" occurring in PP Act would include a person, who is found to have occupied any public premises without lawful authority as well as those whose occupation was initially permissible at the inception but subsequently ceased to be authorised. In view of the judgment of the Division Bench of this Court in Escorts Heart Institute & Research Centre Ltd. (supra), even if initially the respondent was in permissible occupation/possession of the subject land, on expiry of the term of the lease way back in the year 1994 he would cease to be an authorised occupant.
We may also refer to the judgment of this Court in Anant Raj Agencies (supra), where it has clearly been held that once a notice was issued under Section 4 of the PP Act by the Estate Officer, the only course open to the noticee is to respond to the notice.
Accordingly, in view of the discussions made above, we opine that the impugned order dated 24.04.2026 passed by the learned Single Judge is to be regarded as a "Judgment" for the purpose of invoking jurisdiction of intra- court appeal under Clause 10 of the Letters Patent and, therefore, the instant appeal is maintainable.
As regards issue "b" set out hereinabove, what we notice is that learned Single Judge while passing the impugned order, after discussing the respective cases of the parties, has only observed that looking at the chequered history of the previous litigation and in the peculiar facts and circumstances of the case, the matter requires consideration and, thereafter without giving any reason, even for the namesake, has directed that the Estate Officer shall not proceed further with the show-cause notice dated 17.04.2026. Such a course, in our opinion, was not available to the learned Single Judge for passing the interim order, which has impacted the valuable right of the appellants to invoke the statutory right under Section 4 of the PP Act, without giving reasons and without giving a finding on the issue relating to prima facie case, irreparable loss and balance of convenience.
It is settled law that this Court, while passing the interim orders even while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, is under an obligation to conform to the legal principle governing the grant of an interim order, which requires adjudication to be made regarding a prima facie case, balance of convenience and irreparable loss. Hon'ble Supreme Court in Union of India v. Era Educational Trust, (2000) 5 SCC 57, has observed that it may be that Order XXXIX of the CPC may not be applicable at the stage of granting interim relief in a petition under Article 226 of the Constitution of India, but at the same time various principles laid down under Order XXXIX for granting ad-interim relief are required to be taken into consideration. Paragraph 6 of the judgment in Era Educational Trust (supra) is quoted below:-
"6.It may be that Order XXXIX CPC would not be applicable at the stage of granting interim relief in a petition under Article 226 or 227 of the Constitution, but at the same time various principles laid down under Order XXXIX for granting ad interim or interim reliefs are required to be taken into consideration. In the case of Morgan Stanley Mutual Fund v. Kartick Das [(1994) 4 SCC 225] after considering the various authorities this Court laid down the guiding principles in relation to grant of an ad interim injunction which are as under: (SCC pp. 241-42, para 36)
"36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-
(a) whether irreparable or serious mischief will ensue to the plaintiff;
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application;
(f) even if granted, the ex parte injunction would be for a limited period of time;
(g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court."
We may also refer in this regard an order dated 07.08.2025 passed by a Co-ordinate Bench of this Court in W.P(C) 11876/2025, Mohmmed Javed v. Union of India & Ors., wherein by placing reliance on Era Educational Trust (supra), it has been held that "it is trite law that although the provisions of Code of Civil Procedure are, ipso facto, not applicable to the proceedings of a Writ Petition before the High Court, however, principles laid down for granting interim relief under Order XXXIX of the CPC should be kept in mind by the High Court".
When we analyse the impugned order passed by the learned Single Judge on the touchstone of the aforesaid principle, what we find is that nothing has been considered by the learned Single Judge in respect of a prima facie case, irreparable loss and balance of convenience while passing the impugned order.
Hon'ble Supreme Court in Deoraj v. State of Maharashtra, (2004) 4 SCC 697 (supra), has observed that in cases where withholding of an interim relief would tantamount to disposal of the main petition itself; for by the time the main matter comes up for hearing, there would be nothing left to be allowed as relief to the petitioner, the availability of a very strong prima facie case, which has to be of a standard much higher than just prima facie case, consideration of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant interim relief. The Hon'ble Supreme Court has further observed that such would be rare and exceptional cases and also that such an interim relief can be granted only if the Court is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated and at the end the Court would not be able to vindicate the cause of justice. The Apex Court further observed that such would be a rare case accompanied by compelling circumstances where the injury complained of is immediate and pressing and would cause extreme hardship. Paragraph 12 of the judgment in Deoraj (supra) is extracted herein below:-
"12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case-of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent."
Thus, what we need to examine is as to what would be the impact on the proceedings of the main Writ Petition if the proceedings before the Estate Officer pursuant to the show-cause notice had not been stayed by passing the interim order. Even if it is presumed that the case of the respondent is that by non-interference in the show-cause notice would render the Writ Petition itself infructuous, the learned Single Judge ought to have taken into consideration the prima facie case, balance of convenience and irreparable injury and further that such injury would tilt the balance of case and only on recording finding on these aspects the interim relief of the nature which has been granted vide the impugned order, could have been granted.
We may also notice that in such cases, the availability of a "very strong prima facie case", of a standard much higher than just a "prima facie case", is one of the requisite considerations for passing an order of interim relief.
Accordingly, since the impugned order dated 24.04.2026 passed by the learned Single Judge does not reflect upon any of the aforesaid aspects of the matter in as much as it does not even record any discussion, much less any finding, on the aspects of a strong prima facie case, irreparable loss and balance of convenience, in our opinion, such an order is not sustainable. The issue"b"thus stands decided in these terms.
For the discussions made and reasons given above, the instant appeal is allowed and the order dated 24.04.2026 passed by the learned Single Judge, so far as it directs the Estate Officer to not proceed further with the show- cause notice dated 17.04.2026 is hereby set aside.
The pending application(s), if any, stand disposed of.
The appeal along with pending applications stands disposed of. 63. There shall be no orders as to costs.