Special appeals against interim orders not characterized as judgments under Chapter VIII Rule 5 of the Allahabad High Court Rules are not maintainable.

JUDGMENT :

1. Heard Shri Sajjad Husain, learned counsel for the petitioner, Shri V.P. Nag, the learned Standing counsel appearing for the State of U.P., Shri Puneet Chandra, the learned counsel appearing for Awas Vikas Parishad and Mohd. Altaf Mansoor, the learned counsel appearing for the opposite party Nos.6 & 7.

2. By means of the instant intra-Court Appeal filed under Chapter VIII Rule 5 of the ALLAHABAD HIGH COURT RULES , the appellant, who has described himself as “Kalamuddin; popularly known as Shanu, S/o Nasiruddin- Incharge, Vidhan Sabha (East); Bhartiya Kisan Union (Avadh) Raju Gupta Sangathan, U.P. Lucknow, Regional Office- 529/17-C, Near State Bank, Khurram Nagar, Vikas Nagar, Lucknow- 226022” has challenged an interim order dated 26.11.2024 passed by an Hon’ble Single Judge of this Court in Writ C No.10189 of 2024, which order reads as follows:-

“1. Heard Shri Mohd. Altaf Mansoor, learned counsel for the petitioners and learned Standing counsel who accepts notice on behalf of respondent nos.1,2 and 5.

2. Shri Puneet Chandra, Advocate who appeared through video conferencing accepts notice on behalf of respondent nos.3 and 4. Shri Chandra opposes the petition, however, states that he wants to file counter affidavit to bring on record the essential facts.

3. Learned Standing Counsel may seek instructions and file counter affidavit within four weeks.

4. Rejoinder affidavit, may be filed within a week thereafter.

5. List this case on 22.1.2025.

6. Till the next date of listing, no further steps for ceiling/demolition shall be taken in pursuance to order dated 20.5.2004, contained in Annexure No.2 and consequential request made vide order dated 16.11.2024 contained in Annexure No.14.”

3. The learned counsel for the opposite parties have raised three fold preliminary objections against maintainability of the Special Appeal. The first preliminary objection is that the writ petition was filed challenging an interim order dated 30.09.2024 by which the opposite parties have been granted time to file counter affidavits and the petitioner has been granted time to file a rejoinder affidavit and the operation of a ceiling / demolition order has been stayed till the next date of listing of the Writ Petition, i.e. 22.01.2025. The Writ Court has not decided any point by the order under challenge in this Appeal and the order does not fall within the category of a ‘judgment’. Therefore, the Special Appeal would not lie against such an order.

4. The second objection is that the Writ Petition was filed against an order passed by the Commissioner, Division, Lucknow in an Appeal under Section 28 A (4) of U.P. Urban Planning and Development Act, 1973 and, therefore, the Special Appeal is not maintainable as per the provisions contained in Chapter VIII Rule 5 of the ALLAHABAD HIGH COURT RULES ..

5. The third objection raised by the learned Counsel for the opposite parties is that the appellant was not a party to the Writ Petition and he can file a Special Appeal only after seeking leave of this Court. However, the Special Appeal has been filed without seeking leave of the Court and, therefore, it is not maintainable.

6. In reply to the aforesaid preliminary objections, the learned counsel for the appellant merely submitted that the petitioners had concealed certain relevant facts from the Writ Court and had obtained an ex-parte stay order hastily by making a mention for taking up the case on urgent basis. The