This Letters Patent Appeal is directed against the order passed by the learned Single Judge on 30th September 1999 in Civil Application No. 12419 of 1998 in Appeal From Order No.642 of 1998. The question which arises as a preliminary point in this case is, as to whether this Letters Patent Appeal is maintainable or not, in view of the Division Bench decision of this Court in the case of Jaimin J. Desai v. Gujarat Chamber of Commerce and Industry, reported in 2000(1) Vol.41, GLR
920. The Division Bench in the aforesaid case has held in no uncertain terms that the order passed by the Single Judge in an Appeal From Order under Order 43 Rule 1(r) of the Code of Civil Procedure, an order being in exercise of appellate jurisdiction, the Letters Patent Appeal is not maintainable. In the instant case, the impugned order is dated 30th September 1999 which has been passed by the learned Single Judge in Civil Application moved in Appeal From Order being No.642 of 1998. After the order dt.30.9.99 passed in C.A. the main Appeal From Order No.642 of 1998 has already been allowed on 5.4.2000. Mr.Vyas, learned Counsel appearing for the appellant has submitted that since the impugned order has not been passed in the Appeal From Order itself, but in the Civil Application and the prayer which was made in the Civil Application which has been granted by the learned Single Judge was beyond the scope of the Appeal, such an order passed in Civil Application in Appeal From Order cannot be said to be an order passed in an Appeal From Order and therefore this Letters Patent Appeal is maintainable. It may also be pointed out that in the aforesaid decision in the case of Jaimin J.Desai (supra), the Division Bench has also considered the contention that the maintainability of Letters Patent Appeal cannot be questioned when the Single Judge exceeds his powers or when power is exercised in a way which is violative of fundamental principles of law and the Court has negatived the said contention. In our view, it hardly makes any difference whether such an order is passed in a Civil Application in a pending Appeal From Order or the order is passed in Appeal From Order. When the order passed in the main Appeal From Order itself is not appealable by way of Letters Patent Appeal, there is no question of Letters Patent Appeal being maintainable against any order passed in any Civil Application in such Appeal From Order. Even if the order passed in the Civil Application is complained to be an order beyond the scope of the appeal, yet the Letters Patent Appeal against such an order cannot be said to be maintainable in view of the aforesaid decision rendered by the Division Bench. Accordingly, this Letters Patent Appeal is hereby dismissed. Notice is hereby discharged.
The Letters Patent Appeal itself has been dismissed as not maintainable. Therefore, the ad-interim order passed on 18th November 1999 stands vacated. The Civil Application No.12519 of 1999 is hereby rejected and the notice is hereby discharged.
Learned Counsel for the appellant has submitted that the ad-interim order be allowed to be continued since he wants to approach the Supreme Court. In our view, there is no question of continuance of the ad-interim order as the Letters Patent Appeal itself has been dismissed as it is not at all maintainable. The request made by learned Counsel for the applicant is hereby declined.
4th Aug.2000(M.R.Calla, J.) (R.R.Tripathi,J.)