1. This intra Court appeal has been preferred as against the order dated 6.8.2009 passed in S.B. Civil Writ Petition No. 4114/2007 by Single Bench allowing the application under Section 65 of the Evidence Act with respect to agreement dated 2.10.1999 in a pending civil suit.

2. It is not in dispute that Civil Suit No. 67/2007 is pending before the trial Court i.e. Additional District Judge, Jaipur City, Jaipur. The prayer for adducing the secondary evidence was disallowed by the trial Court by the interim order dated 12.4.2007 passed in the course of trial. Aggrieved thereby, as revision is barred under Section 115 of the Code of Civil Procedure , as suit is not finally disposed of by such an order, writ petition came to be filed, which has been decided by Single Bench of this Court by order dated 6.8.2009. On due consideration, the Single Bench has allowed the writ-application. Aggrieved thereby, the instant intra Court appeal has been preferred.

3. At the outset, Mr. J.P. Goyal, Counsel appearing on behalf of respondent No. 1 has raised preliminary objection that intra Court appeal is not maintainable in view of the decision rendered by Division Bench of this Court in Sukh Dev v. Prakash Chandra, 2010(2) Western Law Cases (Raj.) 500 .

4. Mr. R.K. Agarwal, learned Counsel for appellant has relied upon the decision of Supreme Court in Shahu Shikshan Prasarak Mandal & Anr. v. Lata P. Kore & Ors., (2008) 13 SCC 525 , Mavji C. Lakum v. Central Bank of India, (2008) 12 SCC 726 , Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344 and Division Bench judgment of this Court in Kartar Singh v. Board of Revenue & Ors., 2010(3) Western Law Cases (Raj.) 368 .

5. Mr. R.K. Agarwal, learned Counsel for appellant has also submitted that writ petition was under Article 226 read with Article 227 of the Constitution of India, as such, the intra Court appeal is maintainable.

6. In the instant case, we are of the opinion that the intra Court appeal cannot be said to be maintainable as it arises out of an interim order passed by the civil Court in a pending civil suit. The writ petition is maintainable against such a decision as no revision lies. The scope of revision has been curtailed by the legislature under Section 115 of the Code of Civil Procedure for the purpose to avoid the challenge to interlocutory orders before conclusion of the trial, however, against such a decision, writ petition can be preferred in exceptional circumstances invoking extraordinary jurisdiction of this Court where failure of justice is caused or order is patently illegal. In such a matter, this Court essentially exercises its jurisdiction under Article 227 of the Constitution and label of the petition is not material.

7. In Sukh Dev (supra), Rule 134 of the Rajasthan High Court Rules, 1952, providing the special appeal, has been considered and on due consideration of various decisions of the Apex Court, decision has been rendered by Division Bench that intra Court appeal against such a decision is not maintainable. The Division Bench of this Court in Sukh Dev (supra), has opined thus :

"22. In another case delivered in the case of Kishorilal v. Sales Officer, District Land Development Bank and others, (2006) 7 SCC 496 , observations made by the Hon'ble Supreme Court have been relied upon which are in para 13, which reads as under:-

"13. The learned Single Judge of the High Court, in our opinion, committed an error in interfering with the findings of fact arrived at by the Board of Revenue. The Division Bench of the High Court also wrongly dismissed the LPA without noticing that an appeal would be maintainable if the writ petition was filed under Articles 226 and 227 of the Constitution of India as was held by this Court in Sushilabai Laxminarayan Mudliyar v. Nihalchand Waghajibhai Shaha, (1993) Supp 1 SCC 11 .

(Emphasis supplied).

24. After considering the various judgments of the Hon'ble Supreme Court, including the judgment of the Umaji Keshao M