Hon'ble Mrs. Vijay Lakshmi, J.
This is an intra court appeal filed against the order dated 9.4.2014 whereby the recall application filed by the appellant (respondent no. 2 in the writ petition) has been rejected. The preliminary question to be decided by this Court is as to whether a Special Appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred to as the "Rules of the Court") would be maintainable against an order rejecting the recall application on merits.
Brief facts of this case are that the petitioners Thakur Bal Gopal Jee Maharaj and others had filed Civil Misc. Writ Petition No. 53870 of 1999 challenging an order dated 18.11.1999 passed by the Rent Control & Eviction Officer, Hathras under the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (U.P. Act No. XIII of 1972) (hereinafter referred to as the "Act No. XIII of 1972"). The appellant herein was respondent no. 2 in the said writ petition. By judgment and order dated 5.5.2010 passed by a learned Single Judge, the writ petition was allowed on merits after hearing the learned counsel for the writ petition, although the learned counsel for the respondents was not present even in the revised list. An application was filed under section 151 of the Code of Civil Procedure by the appellant herein (respondent no.2 in the writ petition) with the prayer to recall the order dated 5.5.2010 passed in writ petition no. 53870 of 1999. The said application was heard and rejected by the impugned order dated 9.4.2014, which is reproduced below:-
"Order on Recall Application No.155396 of 2010
1. Heard Sri Swapnil Kumar, Advocate, holding brief of Sri J.K.Sharma, learned counsel appearing for the applicant.
2. There are ten counsels, whose names are shown in the cause list appearing on behalf of respondents and still none appeared, as a result whereof, writ petition was decided in absence of counsel for the respondents vide order dated 5.5.2010.
3. This application has been filed for recall of aforesaid order on behalf of respondents through their counsel Sri Jitendra Kumar Sharma, Advocate, stating that case could not be marked in his office. It is not the case that authority of other counsels have been withdrawn or none could mark the case. There is no justification, therefore, for non appearance of any of the so many counsels representing respondents. I, therefore, do not find any reason to recall order dated 05.05.2010.
4. Rejected."
We have heard Sri Anurag Khanna, learned counsel for the appellant as well as Sri Kshitij Shailendra, learned counsel for the contesting respondents and have perused the record. The relevant Chapter VIII Rule 5 of the Rules of the Court under which the Special Appeal is provided, is reproduced hereinbelow:-
"CHAPTVER VIII MISCELLANEOUS PROVISIONS.
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".
If we delete the provisions by which certain judgments would not be appealable, Rule 5 of Chapter VIII would be read to the effect that 'a special appeal shall lie to the Court from a judgment of one Judge'.
Submission of learned counsel for the appellant is two folds, firstly that the order passed on the recall application would be a judgment, and secondly that it would not fall in the exceptions which have been given in said Rule 5, and thus the special appeal would be maintainable. In support of his submission that the order dated 9.4.2014 would be a judgment, Sri Anurag Khanna, learned counsel for the appellant has placed reliance on two Division Bench decisions of this Court, one dated 8.10.2009 rendered in Special Appeal No. 1623 of 2009 V.K. Chaudhary vs. Chandra Bhushan Mishra, and the other dated 6.5.2008 rendered in Special Appeal NO. (339) of 2008 Smt. Kamla Devi vs. VII Additional District Judge, Jhansi. The learned counsel for the appellant has also placed reliance on a decision of the Apex Court in the case of Shah Babulal Khimji vs. Jayaben D. Kania reported in (1981) 4 SCC 8. It has been submitted that rights of the parties have been determined by the order dated 9.4.2014 and also that the appellants' counsel was not heard by the writ court and the matter was decided exparte on 5.5.2010, because of which the appellants have been deprived of their valuable rights.
Sri Kshitij Shailendra, learned counsel appearing on behalf of the contesting respondents-writ petitioners has, however, submitted that the recall application was filed under section 151 of the Code of Civil Procedure which is a Central Act covered under the Concurrent List of Seventh Schedule of the Constitution, hence an appeal filed against such an order would not be maintainable under Chapter VIII Rule 5 of the Rules of the Court. It is also contended that the basic order dated 5.5.2010, which was passed in the writ petition, is an order passed under Article 226 of the Constitution in a matter relating to U.P. Act (No. XIII of 1972) against which a special appeal would not lie and at most the appellant could approach the Apex Court under Article 136 of the Constitution of India. Learned counsel has thus submitted that the order passed on a recall application cannot be termed as an order against which a special appeal would be maintainable. It is also submitted that the order dated 9.4.2014 rejecting the recall application cannot be termed as a Judgment, and it is only against a judgment that a special appeal would lie under Chapter VIII Rule 5 of the Rules of the Court.
We have heard learned counsel for the parties at length and have perused the record.
The judgment dated 6.5.2008 of the Division Bench of this Court rendered in the case of Smt. Kamla Devi (supra) was a case in which while recalling the judgment passed by the learned Single Judge in a writ petition filed under the provisions of U.P. Act No. XIII of 1972, the learned Single Judge had imposed a condition that the tenants would pay the rent of Rs. 2,500/- per month instead of Rs.5/- per month which was being paid earlier. Treating the said order of enhancement of rent as an order passed under Article 226 of the Constitution of India, the Division Bench entertained the special appeal after recording that there was no discussion in the order passed by the learned Single Judge enhancing the rent or justifying the enhancement of rent. In such circumstances, the order to the extent of enhancement of rent was quashed after entertaining the special appeal under the provisions of Chapter VIII Rule 5 of the Rules of the Court.
Much has been argued by Sri Khanna that an order rejecting the recall application determines the rights of the parties and as such the same would be a judgment for the purposes of Rule 5 of Chapter VIII of the Rules of the Court. He has relied on the Division Bench decision rendered in the case of V.K.Chaudhary (supra) wherein it has been held that an order which finally decides the collateral issue or a question which is not the subject matter of the main case would also be termed as a judgment. In the said case, the Division Bench was dealing with the matter of contempt where charges had been framed against certain officers, who had filed the appeal against the order framing such charges. It was in this background that the Division Bench had entertained the special appeal after holding that such an order would be treated as a judgment for the purposes of filing an special appeal. The ratio of the said judgement would thus not be applicable to the present case where an order rejecting the recall application is under challenge.
The rights of parties are determined in a judgment. The order dated 5.5.2010 would be a judgment where the rights of the parties had been decided. In the present case, the order which is under challenge is not the order dated 5.5.2010 by which the rights of the parties had been decided but is the order dated 9.4.2014 passed on the recall application, rejecting the same on the ground that the counsel for the appellant was not heard. In the said order, what has been stated is that where there were 10 counsel appearing for the appellant (respondent in the writ petition) out of which only one counsel had filed an application stating that his office could not mark the case. The learned Single Judge was of the view that the authority of other counsel, who were also appearing for the same party, had not been withdrawn but they also did not appear nor had filed any application giving reasons for their non appearance, and thus held that there was no justification for non appearance of other counsel representing the same party. It was on this ground that the recall application has been rejected, which cannot be termed as a matter concerning any of the collateral issue raised in the writ petition. In the facts and circumstances of this case, we are of the opinion that the said order cannot be termed as a judgment.
The Apex Court in the case of Shah Babulal Khimji (supra) has observed in Paragraph 151 that "..... What kind of an order will constitute a judgment within the meaning of Clause 15 of the Letters Patent and will become appealable as such must necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed. ......" It has further been held in the same paragraph that "......... It is, however, safe to say that if any order has the effect of finally determining any controversy forming the subject-matter of the suit itself or any part thereof or the same affects the question of court's jurisdiction or the question of limitation, such an order will normally constitute 'judgment' within the meaning of Clause 15 of the Letters Patent. ....."
In the present case, the order dated 9.4.2014 does not determine any controversy whatsoever forming the subject matter of the writ petition or any part thereof nor does it affect the question of court's jurisdiction or the question of limitation. This Court is thus of the view that the order dated 9.4.2014, which has been challenged in this appeal, cannot be termed as a judgment for the purposes of Chapter VIII Rule 5 of the Rules of the Court.
As such, this appeal against an order passed on the recall application, would not be maintainable.
This special appeal is, accordingly, dismissed.