# Ashutosh Shrotriya & Ors v. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors

- **Citation:** (2015) 3 ILRA 1062
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-04
- **Case number:** Special Appeal No. 1140 of 2008
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta, Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashutosh-shrotriya-ors-v-vice-chancellor-dr-b-r-ambedkar-university-agra-ors-43351
- **Pages:** 17

## Headnote

Constitution of India. Art.-226-Writ Petitioninviting counter affidavit without interim
order-whether amenable under Special
Appeal?-held-'No'.
Held: Para-45
In view of the aforesaid discussions, we
answer the question of law referred to
3 All] Ashutosh Shrotriya & Ors. Vs. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors. 1063
the Full Bench by holding that, an order
of a learned Single Judge upon a petition
under
Articles
226
or
227
of
the
Constitution only calling for counter and
rejoinder affidavits is merely a procedural
order in aid of the progression of the case.
An order of this nature which is purely of a
procedural nature in aid of the progression
of the case and to enable the Court to form
a considered view after a counter affidavit
and a rejoinder are filed would not be
amenable to a special appeal under Chapter
VIII Rule 5. Such an order does not decide
anything nor does it have the trappings of
finality. If a party to the proceedings seeks
to press an application for ad interim relief
of a protective nature even before a counter
affidavit is filed, on the ground that a
situation of irretrievable injustice may
result or that its substantive rights would
be adversely affected in the meantime, such
an argument must be addressed before the
Single Judge. If such an argument is urged,
it should be dealt with however briefly,
consistent with the stage of the case, by the
Single Judge. It is for the Division Bench
hearing the special appeal to consider
whether the order decides mattes of
moment or is of such a nature that would
affect the vital and valuable rights of the
parties and causes serious injustice to the
concerned party.
Case Law discussed:
AIR 1970 Alld 561; [(2003) 1 UPLBEC 496];
AIR 1953 SC 198; (1981) 4 SCC 8; (2001) 2
SCC 588; (2006) 5 SCC 399; 2008 (73) ALR 3;
[2009 (1) ADJ 144 (DB)]; [2014 (10) ADJ 211
(DB)(LB)]; 1994 (1) AWC 55; [2007 (3) ADJ
85 (DB)].

## Text

_Characters 0–39,992 of 59,536. This is a partial read: ask again with offset=39992 for what follows._

1062
 INDIAN LAW REPORTS ALLAHABAD SERIES
If the restrain on the discharge of duties
and responsibility by the teacher has been
put by the management of the institution,
then the management also must suffer the
consequences.
14.
We have no hesitation to record
that the High Court, while passing the order
permits the management of an aided
recognized institution to take or not to take
work from the teacher/employee concerned,
must couple the said direction with a further
direction that it shall be responsibility of the
management to make payment of salary to
such teacher/employee from whom it decides
not to take work. The State Government may
not be fastened with the responsibility to
make payment of such employee, who
actually does not work because of the order
of the management.
15.
We are, therefore, of the opinion
that the order of the Hon'ble Single Judge in
so far as it directs the payment of salary to
respondent nos. 3 and 4 through State
exchequer even when the management
decides not to take work from the said
respondents, cannot be legally sustained.
Therefore,
we
provide
that
if
the
management still insists upon to not to take
work from the respondent nos. 3 and 4, then
it must also bear the consequences of
payment of salary to the employee/teacher
concerned from its own resources. The
payment shall not be made from the State
exchequer so long as the respondent nos. 3
and 4 are not permitted to discharge their
official duty in the institution.
16. This order shall not prejudice the
right of the petitioner to make an application
before the Hon'ble Single Judge or for
modification of the order under appeal, as
may be necessary, inasmuch as the Hon'ble
Single Judge has proceeded on the
concession of the counsel for the petitioner.
In view of what has been recorded above, the
counsel may like to withdraw the concession
so made. Petitioner is also at liberty to file
such further application as may be necessary.
17. With the aforesaid direction, this
appeal is disposed of. The order of the
Hon'ble Single Judge stands modified to
the extent indicated above.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE YASHWANT VARMA, J.
Special Appeal No. 1140 of 2008
with
Special Appeal No. 1137 of 2008, Special
Appeal No. 1099 of 2008 and Special Appeal
No. 1145 of 2008
Ashutosh Shrotriya & Ors. ...Appellants
Versus
Vice-Chancellor,
Dr.
B.R.
Ambedkar
University Agra & Ors.
...Opp. Parties
Counsel for the Appellants:
Sri V.D. Dubey
Counsel for the Respondents:
Sri C.B. Yadav, Add. Advocate General, Sri
Shashank Shekhar, Addl. C.S.C., Sri Sanjay
Kumar Singh, Sri Manish Goyal, Sri Rahul
Agarwal, Amicus Curiae.
Constitution of India. Art.-226-Writ Petitioninviting counter affidavit without interim
order-whether amenable under Special
Appeal?-held-'No'.
Held: Para-45
In view of the aforesaid discussions, we
answer the question of law referred to
3 All] Ashutosh Shrotriya & Ors. Vs. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors. 1063
the Full Bench by holding that, an order
of a learned Single Judge upon a petition
under
Articles
226
or
227
of
the
Constitution only calling for counter and
rejoinder affidavits is merely a procedural
order in aid of the progression of the case.
An order of this nature which is purely of a
procedural nature in aid of the progression
of the case and to enable the Court to form
a considered view after a counter affidavit
and a rejoinder are filed would not be
amenable to a special appeal under Chapter
VIII Rule 5. Such an order does not decide
anything nor does it have the trappings of
finality. If a party to the proceedings seeks
to press an application for ad interim relief
of a protective nature even before a counter
affidavit is filed, on the ground that a
situation of irretrievable injustice may
result or that its substantive rights would
be adversely affected in the meantime, such
an argument must be addressed before the
Single Judge. If such an argument is urged,
it should be dealt with however briefly,
consistent with the stage of the case, by the
Single Judge. It is for the Division Bench
hearing the special appeal to consider
whether the order decides mattes of
moment or is of such a nature that would
affect the vital and valuable rights of the
parties and causes serious injustice to the
concerned party.
Case Law discussed:
AIR 1970 Alld 561; [(2003) 1 UPLBEC 496];
AIR 1953 SC 198; (1981) 4 SCC 8; (2001) 2
SCC 588; (2006) 5 SCC 399; 2008 (73) ALR 3;
[2009 (1) ADJ 144 (DB)]; [2014 (10) ADJ 211
(DB)(LB)]; 1994 (1) AWC 55; [2007 (3) ADJ
85 (DB)].
(Delivered by Hon'ble D.Y. Chandrachud,
C.J.)
The issue
1. The reference to the Full Bench
has been occasioned by a referring order
of a Division Bench dated 15 September
2008. The following questions have been
formulated for decision:
"(1) Where a learned Single Judge
while hearing a writ petition calls for
counter and rejoinder affidavits, but does
not pass any order on the stay application
either granting or refusing a stay, will the
order amount to a refusal of interim relief
to the petitioner either temporarily or
impliedly and a 'judgment' within the
meaning of Chapter VIII Rule 5 of the
Rules of the Court, 1952;
(2) Does an order which adversely
affects the valuable rights of a party by a
temporary or implied refusal of interim
relief have the trappings of a judgment."
2. The appellants sought a writ in the
nature of mandamus directing the University
to permit them to appear for counselling for
admission to the Master of Social Work
Diploma Course for 2008-09. A part of the
relief sought was a direction calling for the
answer sheets of the entrance test which was
held on 28 June 2008.
3. The appellants averred in the writ
petition that counselling was to be held on
31 August 2008. The learned Single
Judge while entertaining the writ petition,
passed
the
following
order
on
1
September 2008:
"Sri S K Singh has accepted notice
on behalf of respondents. He prays for
and is granted two weeks' time to file
counter affidavit.
List on 16 September 2008."
4. A special appeal1 was filed against
the order of the learned Single Judge. The
Division Bench, while considering the
special appeal noted that the issue is whether
there is a judgment within the meaning of
Chapter VIII Rule 5 of the Allahabad High
Court Rules, 19522 when a Single Judge
while hearing a writ petition calls for counter
1064
 INDIAN LAW REPORTS ALLAHABAD SERIES
and rejoinder affidavits but does not pass any
order on the application for stay, either
granting or refusing stay. In other words,
would this amount to a refusal of an interim
order temporarily or impliedly, thereby
amounting to a judgment within the meaning
of Chapter VIII Rule 5.
History: Clause 10 of the Letters
Patent and Chapter VIII Rule 5 of the
Rules of Court
5.
Before we deal with the body of
precedent on the subject, it would be
worthwhile to briefly trace the history of the
incorporation of Chapter VIII Rule 5. In
understanding the ambit of the expression
"judgment" it is necessary to bear in mind the
evolution of the Letters Patent and its
association with the Amalgamation Order of
1948 and the Rules of Court. Both have to be
analysed together.
(i) Chapter VIII Rule 5
6. Rule 5 of Chapter VIII, as it
stands at present, reads as follows:
"5. Special appeal.- An appeal shall
lie to the Court from a judgment (not
being a judgment passed in the exercise of
appellate jurisdiction) in respect of a
decree or order made by a Court subject
to the superintendence of the Court and
not being an order made in the exercise of
revisional jurisdiction or in the exercise of
its power of superintendence or in the
exercise of criminal jurisdiction or in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution in respect of any judgment,
order or award-(a) of a tribunal, Court or
statutory arbitrator made or purported to
be made in the exercise or purported
exercise of jurisdiction under any Uttar
Pradesh Act or under any Central Act, with
respect to any of the matters enumerated in
the State List or the Concurrent List in the
Seventh Schedule to the Constitution or (b)
of the Government or any Officer or
authority, made or purported to be made in
the exercise or purported exercise of
appellate or revisional jurisdiction under any
such Act of one Judge."
7. In tracing its history, we must, at
the outset, acknowledge the contribution
made by two judgments of this Court, the
first by a Bench of four Judges in Notified
Area Committee Vs Sri Ram Singhasan
Prasad Kalwar3 and the other by a
Division Bench in Vajara Yojna Seed
Farm, Kalyanpur Vs Presiding Officer,
Labour Court II, U P, Kanpur4.
(ii) Letters Patent
8. The Letters Patent of 17 March
1866 provided for the constitution of the
High Court of Judicature at Allahabad,
the civil jurisdiction of the High Court
and, among other things, for intra court
appeals from judgments of the Judges of
the Court. Clause 10 of the Letters Patent
provided as follows:
"10. And we do further ordain that an
appeal shall lie to the said High Court of
Judicature at Allahabad from the judgment
(not being a judgment passed 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
3 All] Ashutosh Shrotriya & Ors. Vs. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors. 1065
Division Court, pursuant to Section 105 of
the Government of India Act, and that
notwithstanding anything herein before
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 to 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 the Judges of the said High
Court or of such Division Court shall be to
us. Our heirs or successors or Our on Their
Privy Council, as hereinafter provided."
(iii) Amalgamation Order
9. In exercise of the powers conferred
by Section 229 of the Government of India
Act, 1935, the United Provinces High Courts
(Amalgamation) Order, 19485 was issued
and published by the Government of India in
the Gazette Extraordinary on 19 July 1948.
On 26 July 1948, the High Court of
Judicature at Allahabad and the Chief Court
of Oudh were amalgamated resulting in the
creation of a new High Court. Clause 7 of the
Amalgamation Order provided that the new
High Court shall have, in respect of the
whole of the United Provinces, all such
original, appellate and other jurisdiction as,
under the law in force immediately before
the appointed day, was exercisable in respect
of any part in that Province by either of the
existing High Courts. Clause 15 of the
Amalgamation Order provided that the law
in force immediately before the appointed
day relating to appeals of His Majesty in
Council or to the Federal Court from the
High Court in Allahabad and the Judges and
Division Courts thereof shall, with necessary
modifications apply in relation to the new
High Court. Though the Letters Patent
ceased to have effect as a result of Clause
17(a) of the Amalgamation Order, the
jurisdiction of the High Court to hear special
appeals from judgments of Single Judges
was continued by virtue of Clauses 7 and 15
of the Amalgamation Order. Clause 13 of the
Amalgamation Order provided that the law
in force on the date 25 July 1948 relating to
the powers of the Division Courts of the
former High Court would apply in relation to
the new High Court.
(iv) Article 225
10. After the Constitution came into
force, Article 225, which dealt with the
jurisdiction of the existing High Courts,
provided as follows:
"225. Jurisdiction of existing High
Courts.- Subject to the provisions of this
Constitution and to the provisions of any law
of the appropriate Legislature made by virtue
of powers conferred on that Legislature by
this Constitution, the jurisdiction of, and the
law administered in, any existing High
Court, and the respective powers of the
Judges
thereof
in
relation
to
the
administration of justice in the Court,
including any power to make Rules of Court
and to regulate the sittings of the Court and
of members thereof sitting alone or in
Division Courts, shall be the same as
immediately before the commencement of
this Constitution:
Provided that any restriction to
which the exercise of original jurisdiction
by any of the High Courts with respect to
any matter concerning the revenue or
concerning any act ordered or done in the
1066
 INDIAN LAW REPORTS ALLAHABAD SERIES
collection
thereof
was
subject
immediately before the commencement of
this Constitution shall no longer apply to
the exercise of such jurisdiction."
11.
Article 225 had the effect of
keeping alive the Amalgamation Order and,
in consequence, the applicability of Clause
10 of the Letters Patent. The effect of Article
225 was that the jurisdiction of, and the law
administered in any existing High Court
would be the same as immediately before the
commencement of the Constitution, subject
to the provisions of the Constitution and the
provisions of any law of the appropriate
legislature by virtue of powers conferred on
that legislature by the Constitution.
12. Chapter VIII Rule 5 of the Rules of
Court, as it was originally framed, provided
for a special appeal in the following terms:
"5. An appeal shall lie to the Court 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 Court,
and not being an order made in the exercise
of revisional jurisdiction, and not being an
order passed or made in the exercise of its
power of superintendence, or in the exercise
of Criminal Jurisdiction of one Judge, and an
appeal shall lie to the Court from a judgment
of one Judge made 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 Court, where the
Judge who passed the judgment declares that
the case is a fit one for appeal."
(v) Abolition of Letters Patent
13. In 1962, the state legislature
enacted the Uttar Pradesh High Court
(Abolition of Letters Patent Appeals) Act,
19626. By virtue of the provisions of
Section 3, the legislature enacted the
abolition of special appeals from a
judgment or order of one Judge of the
High Court made in the exercise of
appellate jurisdiction in respect of a
decree or order made by a Court subject
to the superintendence of the High Court.
Section 3 provided as follows:
"3.(1) No appeal, arising from a suit or
proceeding
instituted
or
commenced,
whether
prior
or
subsequent
to
the
enforcement of this Act, shall lie to the High
Court from a judgment or order of one Judge
of the High Court, made in the exercise of
appellate jurisdiction, in respect of a decree
or order made by a Court, subject to the
superintendence of the High Court, anything
to the contrary contained in Clause 10 of the
Letters Patent of Her Majesty, dated the 17th
March, 1866, read with Clause 17 of the U.P.
High Courts (Amalgamation) Order; 1948,
or in any other law, notwithstanding.
(2)
Notwithstanding
anything
contained in sub-section (1) all appeals
pending before the High Court on the date
immediately
preceding
the
date
of
enforcement of this Act shall continue to
lie and be heard and disposed of as
heretobefore, as if this Act had not been
brought into force."
14.
Following the provisions of U P
Act 14 of 1962, the Rules of Court were also
amended by a notification dated 6 November
1963. Further amendments were made in
1972 and 1975 to U P Act 14 of 1962. In
1981 the Uttar Pradesh High Court
(Abolition of Letters Patent Appeals)
(Amendment) Act, 1981 was enacted with a
view to abolishing Letters Patent appeals
against the judgments or orders of a Single
Judge under Article 226 or Article 227 in
3 All] Ashutosh Shrotriya & Ors. Vs. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors. 1067
respect of any judgment, order or award of
the subordinate courts, tribunals, or statutory
arbitrators made in exercise of jurisdiction
under any Uttar Pradesh Act or under any
Central Act relating to any of the matters
enumerated in the State List or the
Concurrent List to the Seventh Schedule of
the Constitution or in respect of any order
made in exercise of the appellate or
revisional jurisdiction under any such Act, by
the State Government or by any officer or
authority. Section 5 of U P Act 14 of 1962
was substituted by the following provisions
by Amending Act 12 of 1981:
"5. Abolition of Letters Patent Appeals
in certain other cases.- (1) Notwithstanding
anything to the contrary contained in Clause
10 of the Letters Patent of Her Majesty,
dated March 17, 1866 read with Clauses 7
and
17
of
the
U.P.
High
Courts
(Amalgamation) Order, 1948, or in any other
law, no appeal arising from an application or
proceeding,
instituted
or
commenced
whether
prior
or
subsequent
to
the
commencement of the Uttar Pradesh High
Court (Abolition of Letters Patent Appeals)
(Amendment) Act, 1981, shall lie to the High
Court from a judgment or order of one Judge
of the High Court, made in the exercise of
jurisdiction conferred by Articles 226 or 227
of the Constitution, in respect of any
judgment, order or awards -
(a) of a Tribunal, Court or Statutory
Arbitrator made or purported to be made
in the exercise or purported exercise of
jurisdiction under any Uttar Pradesh Act
or under any Central Act, with respect to
any of the matters enumerated in the State
List or the Concurrent List in the Seventh
Schedule to the Constitution, or
(b) of the Government or any officer
or authority, made or purported to be
made in the exercise or purported exercise
of appellate or revisional jurisdiction
under any such Act.
(2) Notwithstanding anything contained
in sub-section (1), all appeals of the nature
referred to in that sub-section pending before
the High Court immediately before the
commencement of the Uttar Pradesh High
Court (Abolition of Letters Patent Appeals)
(Amendment) Act, 1981, shall be heard and
disposed of as if that sub-section had not
been enacted."
15. In consequence, Chapter VIII
Rule 5 of the Rules of Court was amended
by a notification dated 27 July 1983
which was published in the Gazettee on
13 August 1983 to make the provision for
special appeals under Chapter VIII Rule 5
accord with the provisions of Section 5 of
the Amending Act of 1981.
The meaning of 'judgment'
16. The essence of the reference
which has been made by the Division
Bench in the present case, turns upon the
meaning of the expression 'judgment' in
Chapter VIII Rule 5. An appeal lies, first
and foremost, from a judgment. Rule 5
then proceeds to lay down the excepted
categories or exclusions where a special
appeal will not be maintainable. The
exclusions, which have been specified in
Rule 5, are:
(i) A judgment passed in the exercise
of the appellate jurisdiction in respect of a
decree or order made by a court subject to
the superintendence of the Court;
(ii) An order made in the exercise of
revisional jurisdiction;
(iii) An order made in the exercise of
the power of superintendence;
(iv) An order made in the exercise of
criminal jurisdiction;
1068
 INDIAN LAW REPORTS ALLAHABAD SERIES
(v) An order made in the exercise of
jurisdiction conferred by Articles 226 or
227 of the Constitution in respect of any
judgment, order or award :
(a) of a tribunal, court or statutory
arbitrator made or purported to be made
in the exercise or purported exercise of
jurisdiction under any Uttar Pradesh Act
or Central Act, with respect to a matter
contained in the State List or the
Concurrent List to the Seventh Schedule
of the Constitution; or
(b) of the government or any officer
or authority, made or purported to be
made in the exercise or purported exercise
of appellate or revisional jurisdiction
under any such Act.
17.
The issue before the Court is
whether an order of a Single Judge on a
petition under Articles 226 or 227 of the
Constitution, merely directing the filing of a
counter affidavit within a stipulated period
and a rejoinder thereafter, would constitute a
judgment within the meaning of Chapter
VIII Rule 5 of the Rules of the Court.
18. The issue as to what constitutes a
judgment within the meaning of the Letters
Patent of the High Courts came up initially
before the Supreme Court in Asrumati Debi
Vs Kumar Rupendra Deb Raikot7. That was
a case where an application had been
presented by the plaintiff in a suit instituted
before the Court of the Subordinate Judge,
on the Original side of the High Court of
Calcutta under Clause 13 of the Letters
Patent, praying for the transfer of the suit to
the High Court to be tried in its extraordinary
jurisdiction. A Single Judge of the High
Court allowed the application. In appeal, a
Division Bench of the High Court held that
the order appealed against was not a
judgment within the meaning of Clause 15 of
the Letters Patent. The Bench of four learned
Judges of the Supreme Court held that there
was a wide divergence of judicial opinion on
the subject and the scope of the word
'judgment' as it occurred in Clause 15 of the
Letters Patent of the Calcutta High Court and
in the corresponding clauses of the Letters
Patent of other High Courts, which may
warrant a determination in an appropriate
case. However, it was held that in none of the
cases was an order of the character which the
Supreme Court had before it, been regarded
as a 'judgment' within the meaning of Clause
15 of the Letters Patent. The appeal was
accordingly dismissed.
19.
Eventually, it was in the 1981
decision in Shah Babulal Khimji Vs Jayaben
D Kania8, that the issue as to when a
decision of a Single Judge could be regarded
as a 'judgment' within the meaning of Clause
15 of the Letters Patent of the Bombay High
Court came to be considered and resolved. A
considerable body of law has emerged in
following and interpreting the decision.
Since we would have to advert to those
decisions, we begin by stating the principles
which emerge from Shah Babulal Khimji.
20. The first principle which has been
laid down by the Supreme Court is that
though the Letters Patent did not make an
attempt to define what is meant by the
expression 'judgment', since the Letters
Patent was a special law, it was not
appropriate to project the definition of the
expression 'judgment' appearing in Section
2(9) of the Code of Civil Procedure, 19089
into the meaning of that expression for the
purposes of the Letters Patent. Under Section
2 (9), the expression 'judgment' is defined to
mean 'a statement given by the Judge on the
grounds of a decree or order.' In the view of
the Supreme Court, the concept of a
'judgment' as defined in the CPC was rather
3 All] Ashutosh Shrotriya & Ors. Vs. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors. 1069
narrow and the limitations which are
contained in sub-section (9) of Section 2
while defining the expression 'decree' cannot
be physically imported into the definition of
the expression 'judgment' for the purposes of
Clause 15 of the Letters Patent which has
advisedly not used the term 'order' or 'decree'.
Consequently, it was held that the word
'judgment' for the purposes of Clause 15
should receive a wider and more liberal
interpretation than the expression 'judgment'
in the CPC.
21. The second important principle
which emerges from the judgment in Shah
Babulal Khimji is that a 'judgment'
imports a concept of finality in a broader
and not in a narrower sense. A judgment
can be of three kinds:
(i) a final judgment;
(ii) a preliminary judgment; and
(iii) an intermediary or interlocutory
judgment.
22. The reference in the present case,
essentially turns on what categories of
interlocutory judgments would fall within the
ambit of the expression 'judgment' for the
purpose of Chapter VIII Rule 5. Interlocutory
orders governed by Clauses (a) to (w) of
Order XLIII Rule 1 CPC contain a quality of
finality and would hence be judgments
which would be appealable under the Letters
Patent. But, in addition, there may be
interlocutory orders which are not covered
by Order XLIII Rule 1 but may also possess
a characteristic of finality. Dealing with this
aspect, the Supreme Court observed that :
"(3) Intermediary or Interlocutory
judgment.- Most of the interlocutory
orders which contain the quality of
finality are clearly specified in clause (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."
23. The third principle which was laid
down in Shah Babulal Khimji is that in the
course of a trial, the trial Judge may pass a
number of orders of a procedural or routine
nature. Some of these orders may even cause
a degree of inconvenience to one party or the
other, such as an order refusing an
adjournment or an order refusing to summon
a witness or document. Such orders, the
Supreme Court held, are purely interlocutory
and are not judgments because it would
always be open to a party aggrieved to make
a grievance against the order passed, in an
appeal arising out of the final judgment of
the trial Judge.
24.
The fourth principle which
emerges from the judgment of the Supreme
Court in Shah Babulal Khimji is that every
'interlocutory order' is not a 'judgment'. Only
certain categories of interlocutory orders can
be regarded as judgments:
"...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." (emphasis supplied)
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25. The Supreme Court ruled that an
interlocutory order to be a judgment must
contain traits and trappings of finality,
either when it decides the questions in
controversy in an ancillary proceeding or
in the suit itself or in a part of the
proceedings.
26.
The next important decision to
which a reference has to be made, is a
judgment of two learned Judges of the
Supreme Court in Central Mine Planning and
Design Institute Ltd Vs Union of India10.
That was a case where a learned Single Judge,
on an application under Section 17-B of the
Industrial Disputes Act, 1947, directed the
employer to pay to the workmen the full
wages last drawn by them on the date on
which they were terminated from service. The
Supreme Court observed that the Division
Bench of the High Court erred in coming to
the conclusion that the directions of the
learned Single Judge did not constitute a
'judgment' within the meaning of Clause 10 of
the Letters Patent of the Patna High Court.
After following the earlier decision in Shah
Babulal
Khimji,
the
Supreme
Court
formulated the following test:
"...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."
27. The order of the learned Single
Judge was held to have determined the
entitlement of the workmen to receive
benefits and imposed an obligation on the
employer to pay those benefits under
section 17-B and was held to be a
judgment within the meaning of Clause
10 of the Letters Patent.
28. In Midnapore Peoples' Coop
Bank Ltd Vs Chunilal Nanda11, the
issues, which among others, came up
before the Supreme Court were :
(i) Where the High Court in a
contempt proceedings renders a decision
on the merits of a dispute between the
parties, either by an interlocutory order or
final judgment, whether that would be
appealable under Section 19 of the
Contempt of Courts Act, 1971 and if not,
what would be the remedy to the person
aggrieved; and
(ii) Where such a decision on merits
is rendered by an interlocutory order of a
learned Single Judge, whether an intracourt appeal would be maintainable under
Clause 15 of the Letters Patent of the
High Court of Calcutta.
29. The Supreme Court observed
that interlocutory or interim orders which
are passed during the pendency of a case
would 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."
3 All] Ashutosh Shrotriya & Ors. Vs. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors. 1071
30.
The Supreme Court held that the
expression 'judgment' in Clause 15 of the
Letters
Patent
will,
besides
covering
judgments as defined in Section 2(9) of CPC
and orders enumerated under Order XLIII
Rule 1, also cover other orders which though
they may not finally and conclusively
determine the rights of parties with regard to
all or any of the matters in controversy, may
finally decide some collateral matters which
affect the vital and valuable rights and
obligations of the parties. Interlocutory
orders which fell under categories (i) to (iii)
above were held to be 'judgments' whereas,
orders falling under categories (iv) and (v)
were held not to be 'judgments' for the
purpose of filing appeals provided under the
Letters Patent.
31. We now formulate the governing
principles :
(i) The expression 'judgment' was
advisedly not defined in the Letters
Patents of various High Courts which
conferred a right of appeal against a
judgment of a Single Judge to a Division
Bench of that Court;
(ii) The expression 'judgment' is not
to be construed in the narrower sense in
which the expression 'judgment', 'decree'
or 'order' is defined in the CPC, but must
receive a broad and liberal construction;
(iii) Every order passed by a trial Judge
on the Original side of a High Court
exercising original jurisdiction or, for that
matter, by a learned Single Judge exercising
the writ jurisdiction, would not amount to a
judgment. If every order were construed to
be a judgment, that would result in opening a
flood of appeals and there would be no end
to the number of orders which could be
appealable under the Letters Patent;
(iv) Any interlocutory order to
constitute a judgment, must possess the
characteristic of finality in the sense that
it must adversely affect a valuable right of
a party or decide an important aspect of
the trial in an ancillary proceeding. In
order to constitute a 'judgment', the
adverse effect on a party must be direct
and immediate and not indirect or remote;
(v) In order to constitute a judgment,
an interlocutory order must: (a) decide a
matter of moment; or (b) affect vital and
valuable rights of the parties and must
also work serious injustice to the party
concerned:
(vi) On the other hand, orders passed in
the course of the proceedings of a routine
nature, would not constitute a judgment even
if
they
result
in
some
element
of
inconvenience or hardship to one party or the
other. Routine orders which are passed by a
Single Judge to facilitate the progress of a case
may cause some element of inconvenience or
prejudice to a party but do not constitute a
'judgment' because they do not finally
determine the rights or obligations of the
parties. Procedural orders in aid of the
progression of a case or to facilitate a decision
are not judgments.
32.
Now, it is in the background of
these principles that we need to deal with the
issue as to whether an order of a Single
Judge, in the exercise of writ jurisdiction,
calling for the filing of a counter affidavit
and a rejoinder, must in all circumstances
without exception be treated as orders merely
facilitating the progress of the case and not
constituting a judgment. Where a judge
requires the filing of a counter affidavit by
the respondent and a rejoinder by the
petitioner in response, this is in the nature of
a procedural direction to enable the Court to
have a full disclosure of the underlying facts
and issues so as to facilitate a decision. The
object of such a direction is to enable the
Single Judge to be apprised of facts relevant
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 INDIAN LAW REPORTS ALLAHABAD SERIES
and material to arriving at a considered view.
Such a direction is in aid of the progression
of the case. It does not decide the matter or
issue in controversy. The lis continues to
remain pending before the Single Judge. The
Court would apply its mind to the merits of
the controversy, for the purpose of deciding
an application for interim relief and
eventually for the final disposal of the writ
proceedings after affidavits are filed. This is
a procedural order and not a judgment.
33.
At least three judgments of the
Division Benches of this Court have
construed directions of this nature not to
constitute 'judgment' for the purpose of
Chapter VIII Rule 5 of the Rules of the
Court. The first decision was of a Division
Bench of this Court in Mohd Hashim Vs
Board of Madarsa Education12. In the writ
proceedings, a learned Single Judge issued
directions for the filing of a counter affidavit
and rejoinder affidavit and the case was
directed to be listed after the expiry of the
period mentioned in the order. No order
appears to have been passed on the stay
application filed together with the writ
petition. The grievance of the original
petitioner, who was in a special appeal, was
that the order of the learned Single Judge
amounted to a rejection of the prayer for stay
rendering the writ petition infructuous. From
the judgment of the Division Bench, it
appears that the case related to examinations
which were scheduled to be held with effect
from 31 May 2008. When the writ petition
was filed before the learned Single Judge
who passed an order on 13 May 2008, it was
stated that the examinations were expected to
be held in the last week of May 2008. Before
the Division Bench, it was stated that the
examinations were now scheduled from 31
May 2008 and the fate of nearly two hundred
students
who
had
submitted
their
examination forms would be adversely
affected. The Division Bench held that there
was no judgment by which the appellant had
been aggrieved and hence the special appeal
was not maintainable. It was left open to the
appellant to move an application before the
learned Single Judge and the special appeal
was dismissed.
34.
The second judgment of a
Division
Bench
in
Committee
of
Management
of
National
Integrated
Medical Association Vs State of U P13
arose out of an order which was passed by
the Prescribed Authority in the exercise of
jurisdiction under Section 25 of the
Societies Registration Act, 1860. The
learned Single Judge directed, while issuing
notice, that the case be listed after six
weeks. The Division Bench, in special
appeal, noted that the stay application had
neither been allowed nor rejected. The
Division Bench held that since the
Prescribed Authority was a Tribunal while
exercising jurisdiction under Section 25, a
special appeal was barred under Chapter
VIII Rule 5. The Division Bench also held
that the order which was passed by the
learned Single Judge was not an order
deciding an interim application nor was any
issue decided which may adversely affect a
valuable right of the parties and hence, the
special appeal would not be maintainable.
The Division Bench held as follows:
"...routine orders which are passed to
facilitate the progress of the case are not
"judgment" which are appealable under
the Letters Patent. The impugned order
dated 17.9.2008 as extracted above
clearly indicates that the said order is not
an order deciding the interim application
of the appellants nor any issue has been
decided by the said order which may
adversely affect the valuable right of the
parties..."
3 All] Ashutosh Shrotriya & Ors. Vs. Vice-Chancellor, Dr. B.R. Ambedkar University Agra & Ors. 1073
35. The Division Bench rejected the
submission that the application for interim
relief must be deemed to have been
rejected on the basis of the provisions of
Explanation V to Section 11 of the CPC. In
the view of the Division Bench, the order
impugned was a 'normal routine order'
passed during the progress of the case and
did not affect the valuable right of any
party and was hence not appealable.
36. The third judgment of the Division
Bench is in Ghisai Ram Krishak Vidyalaya
Samiti Vs State of U P14. In this case, a
challenge was addressed to an order passed
by the Deputy Registrar, Firms, Societies &
Chits on 8 July 2014. The learned Single
Judge, by an order dated 24 July 2014
directed that the petition be listed in the
following week when the prayer for interim
relief would be considered. Subsequently,
when the petition came up, a consequential
order had been passed by the District Basic
Education Officer on 21 July 2014 and in
order to challenge that order the writ petition
was sought to be amended. On 15 October
2014, the learned Single Judge merely
directed that a counter affidavit and rejoinder
be filed. It was this order dated 15 October
2014 that was sought to be challenged on the
ground that it effectively amounted to the
denial of interim relief since the tenure of the
appellant Committee was to expire on 31
October 2014. The Division Bench held that
the order of the learned Single Judge, as it
stood, did not contain any decision. In order
to be an order which was appealable under
Chapter VIII Rule 5 of the Rules of the
Court, there had to be an order adversely
affecting the rights of a party touching the
quality of finality or adversity. The Division
Bench observed as follows:
"...There is however another category
of situations which is very common as in the
present case where it is routine in procedure
and is otherwise compulsory or expedient in
the interest of justice to postpone or defer
passing of an order for having a grip of facts
and law, dependant upon cross-pleadings of
the adversaries. The elements of observance
of the principles of natural justice are
attracted and have to be adhered. The court,
therefore, has to decipher the exact situation
prevailing in a particular matter before it
proceeds to apply the principles attracted as
each case may have different facts.