Point of law: Interim order of Single – Appeal not maintainable - Character of the ad interim order would continue to be the same until an adjudication is made by the irrespective of the fact as to whether the opposite side had entered appearance- Such orders cannot be impugned in an appeal under Section 5(i) of the Act.

JUDGMENT :

P.B. SURESH KUMAR, J.

1. This writ appeal is directed against the order passed by the learned Single Judge in W.P. (C) No. 19706 of 2021 on 22.09.2021.

2. Respondents 5 and 6 in the writ petition are the appellants.

3. The order impugned in the appeal reads thus:

The petitioner will take out notice before admission by special messenger to respondents 5 and 6.

The learned Government Pleader will obtain instructions from respondents 1 to 4.

List this case for further consideration on 01.10.2021; until which time, the 4th respondent/Sub-Inspector of Police will ensure that the petitioner and his employees are afforded adequate and effective protection to carry on business in the premises in question; provided they are supported by all necessary licenses and permissions, without any let or interference from any person including respondents 5 and 6.

4. The appellants do not dispute the fact that the impugned order was one passed when the writ petition came up for admission on 22.09.2021. They also do not dispute the fact that the same is an ad interim order. On being required to submit as to the reason for challenging such an order in appeal, instead of moving the learned Judge for vacating/varying the order, the learned counsel for the appellants submitted that despite the appellants entering appearance and filing counter affidavit in the proceedings, the learned Judge extended the impugned ad interim order.

5. As we entertained a doubt as to the maintainability of the appeal, the learned counsel for the appellants was requested to address arguments on the question of maintainability of the appeal. The learned counsel for the appellants then sought time and addressed us today on the question of maintainability of the appeal.

6. The right of appeal being a statutory conferment, in order to examine the question as to the maintainability of the appeal, it is necessary to refer to Section 5 of the Kerala High Court Act, 1958 (the Act), which is invoked by the appellants for preferring the appeal. Section 5 of the Act reads thus:

“5. Appeal from judgment or order of Single Judge: An appeal shall lie to a Bench of two Judges from:

(i) a judgment or order of a Single Judge in the exercise of original jurisdiction.

(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by Subordinate Court.”

The question whether an appeal lies to a Division Bench under Section 5(i) of the Act against an interlocutory order in a writ petition, while the main writ petition is pending and if so, what are the circumstances under which or the types of cases in which such an appeal would lie, has been examined by a Larger Bench of this Court in K.S. Das vs. State of Kerala, 1992 (2) KLT 358. The majority opinion in the said case is as follows:

“Conclusion:

(1) The word ‘order’ in S.5(i) of the Kerala High Court Act, 1958 includes, apart from other orders, orders passed by the High Court in Miscellaneous Petitions filed in the Writ Petitions provided the orders are to be in force pending the Writ Petition. An appeal would lie against such orders only if the orders substantially affect or touch upon the substantial rights or liabilities of the parties or are matters of moment and cause Substantial prejudice to the parties. The nature of the ‘order’ appealable belongs to the category of ‘intermediate orders’ referred to by the Supreme Court in Madhu Limaye’s case, AIR 1978 SC47. The word ‘order’ is not confined to ‘final order’ which disposes of the Writ Petition. The ‘orders’ should not, however, be ad interim orders in force pending the Miscellaneous Petition or orders merely of a procedural nature.

(2) But this does not mean that the Division Bench hearing the appeal against such ‘orders’ will have to admit the appeal or have to modify the impugned order or set it aside the same in every case. There is difference between the question whether an appeal lies to a Division