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2008 Supreme(Bom) 652
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
P.V. HARDAS AND R.M. SAVANT, JJ.
Sayyed Salim S/o Sayyed Yusuf and others - Appellants
VERSUS
Hrushikesh S/o Pralhad Patil - Respondent
LETTERS PATENT APPEAL NO. 48 OF 2008
IN WRIT PETITION NO. 4996 OF 2007
WITH CIVIL APPLICATION NO. 3657 OF 2008
LETTERS PATENT APPEAL NO. 51 OF 2008
IN
CIVIL APPLICATION NO. 3917 OF 2008
IN
WRIT PETITION NO. 4995 OF 2007
Decided on : 02.05.2008
Mr. V.D. Salunke for the Appellants
Mr. R.N. Dhorde h/f. Mr. R.L. Kute for the Respondent no.1
Mr. M.V. Deshpande for the Appellants
Mr. R.N. Dhorde h/f. Mr. R.L. Kute for the Respondent no.1
Headnote:Letters Patent - Clause 15-The respondent was allowed injunction on the basis of her registered sale deed and revenue record which was set aside by in appeal-Order challenged on ground that entitlement of appellant to seek letter of Patent of Court exist or not it was held that.-The above petitions though styled as one under Articles 226 and 227 of the Constitution of India are actually one which were invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
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.
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 XLIII, Rule 1 of CPS, 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 that 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.
1. By the above Letters Patent Appeals, the Appellants who are the original Respondents in Writ Petition nos. 4995 of 2007 and 4996 of 2007 have challenged the order dated 28.2.2008 passed by the learned Single Judge by which order whilst admitting the Petitions, the learned Single Judge has granted interim reliefs in terms of prayer clause (C) of the Petitions which reads as follows:-
"(C) Pending hearing and final disposal of this writ petition, grant stay to the impugned judgment and order dated 7th August, 2007, passed by learned District Judge-2, Aurangabad in Misc. Civil Appeal no. 25 of 2007, and for that purpose, issue necessary orders"
As stated hereinabove the Appellants are the original respondents in the said Writ Petitions 4995 of 2007 and 4996 of 2007. The said Writ Petitions have been filed by the Respondent no.1 to the above Appeals, challenging the order passed by the lower Appellate Court i.e. the learned District Judge, Aurangabad in Misc. Civil Appeal no. 25 of 2007 by which order the injunction granted by the trial Court in favour of the Respondent no.1 came to be vacated by the lower Appellate Court.
2. The subject matter of dispute is land to the extent of 2A and 20G in survey no. 14/4 and 15/2 bearing gut no. 25 totally admeasuring 7H and 76 R situated at village Mitmita, Tq. and Dist. Aurangabad. The Respondent no.1 claims to have purchased the said land from one Laxmibai Vishwanath Mule sometime in the year 1983. The mutation entries have been effected in favour of the predecessors in title of the Respondent no.1 as well as the the Respondent no.1 since the time he has purchased the said land. The Appellants above named, claim to have purchased the same land from the husband of Laxmibai namely Vishwanath Dagdu Mule by registered sale deed dated 27.11.1974 which was executed in favour of one Nathji Nikam i.e. father of the Appellant no.2 in L.P.A. no.48 of 2008. Appellants in Appeal no. 51 of 2008 claim to be the power of attorney holders of the Appellant no.2 i.e. Suresh Nathji Nikam.
3. On the ground that the Appellants herein are disturbing the possession, the Respondent no.1 filed Regular Civil Suit no. 18 of 2007 for perpetual injunction against the above Appellants. The said suit was based on the long standing possession of the Respondent no.1. In the said Suit, an application for temporary injunction numbered as Exhibit 5 was filed by the Respondent no.1. The said application was opposed by the Appellants above named, who contended that the lands in respect of which injunction was sought was sold to them by the husband of Laxmibai, i.e. father of the Appellant no.2 in Letters Patent Appeal no. 48 of 2008. The Trial Court i.e. the learned Civil Judge Junior Division, Aurangabad on the basis of the long standing revenue entries, which indicate that the Respondent no.1 and his predecessors in title were in possession of the land allowed the said Application Exhibit 5 for temporary injunction by an order dated 8.2.2007.
4. Aggrieved by the said order dated 8.2.2007 passed by the learned Civil Judge Junior Division, Aurangabad granting injunction in favour of the Respondent no.1 the Appellants above named filed Misc. Civil Appeal no. 25 of 2007 in the Court of the learned District Judge, Aurangabad. The learned District Judge, Aurangabad by his judgment and order dated 15.2.2007 set aside the order dated 8.2.2007 passed by the Trial Court granting injunction to the Respondent no.1. The said injunction was set aside by the Appellate Court on the basis of the material that was before it. It is this order dated 7.8.2007, which was challenged by the Respondent no.1 in the said Writ Petition nos. 4995 of 2007 and 4996 of 2007. In the said Writ Petitions, initially an order of status quo came to be passed by the learned Single Judge, thereafter the learned Single Judge by the impugned order dated 28.2.2008, admitted the Petition by issuing Rule and granted interim reliefs in terms of prayer clause
