We have heard Mr. S.M. Shah, learned counsel assisted by Mr. Y.V. Brahmbhatt appearing for the appellant. 2. By way of this Intra-Court Letters Patent Appeal under Clause 15 of the Letters Patent, the appellants – original respondent Nos.1 to 4 have challenged the order dated 26.3.2012 passed by the learned Single Judge in Civil Application No.13537 of 2011 in First Appeal No.3829 of 2011 whereby the learned Single Judge granted interim relief in favour of the respondents No.1 to 4 – original appellants.
3. In our opinion, this Letters Patent Appeal under Clause 15 of the Letters Patent challenging the order whereby interim relief was granted, is not maintainable. Learned counsel appearing for the appellants has accepted that it is true that in view of Section 100-A of the Code of Civil Procedure, the Letters Patent Appeal is not maintainable against the order passed in First Appeal. But he has urged that he can prefer Letters Patent Appeal challenging the interim order passed in First Appeal as according to him, it is an original judgment passed on interim order in First Appeal and, therefore, Letters Patent Appeal would be maintainable. He placed reliance on the decision of this Court in the case of Mohmed Usuf Daudbhai v. Mohmadbhai Karimbhai Mansur, 1997 (2) GLH (U.J.) 20 wherein this Court has entertained Letters Patent Appeal where order of dismissal for default passed in Civil Revision Application was challenged. He further submitted that this Letters Patent Appeal would be maintainable as no Second Appeal lies against the order passed on stay application in the First Appeal and the writ petition is also not maintainable. Therefore, the only remedy available is to prefer Letters Patent Appeal.
4. In our opinion, so far as the reliance placed on the decision of Mohmed Usuf (Supra) is concerned, the said decision was rendered in the year 1997 when Section 100-A was not inserted in the Code of Civil Procedure. Section 100- A was inserted in the Code of Civil Procedure w.e.f. 1.7.2002. Therefore, the said decision is of no help to the appellants. Therefore, on or after 1.7.2002, any Letters Patent Appeal challenging the order passed in First Appeal or in any miscellaneous proceedings either for grant of stay or injunction or for any other matter, Letters Patent Appeal would not be maintainable. Therefore, in view of specific bar of Section 100A of the Code of Civil Procedure, the present Letters Patent Appeal is not maintainable. Further more, the appellants are not without remedy. They have an efficacious remedy before the Hon'ble Apex Court. Therefore, we do not find any merits in the contention of the learned counsel for the appellants that since the interim order of injunction granted in First Appeal could not be challenged in a writ petition, therefore, the present Letters Patent Appeal would be maintainable.
5. For the aforesaid reasons, we do not find any merits in this Letters Patent Appeal and this Letters Patent Appeal fails and is accordingly dismissed. There shall be no order as to costs.
6. In view of dismissal of Letters Patent Appeal, Civil Application also stands dismissed.
Sd/-
[V. M. SAHAI, J.] Sd/-
[A. J. DESAI, J.] Savariya