(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The appellant has sought to call into question, under Clause 15 of the Letters Patent, oral order dated 4.10.2011 of learned Single Judge of this Court in pending Special Civil Application No.10087 of 2011 whereby the petition of respondent no.1 herein is admitted and ad-interim relief to maintain status quo granted earlier is confirmed and ordered to continue till final decision of the petition. Thus, admittedly the impugned order is an interim order and does not decide any part of the lis or any legal issue. Therefore, a preliminary objection was raised against maintainability of the appeal by learned counsel, Ms.Trusha Patel, appearing for respondent no.1 herein and judgment of the Supreme Court in Midnapore People's Cooperative Bank Ltd. and others v. Chunilal Nanda and others [(2006) 5 SCC 399] was relied upon. The law on the subject settled in the aforesaid case is that interim or interlocutory orders passed during pendency of petition broadly fall under five categories, namely:
(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.
1.1 It is held:
"The term "judgment" occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9), CPC and orders enumerated in Order 43, Rule 1 of CPC, but also other orders which, though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to
(iii) above, are, therefore, "judgments" for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not "judgments" for purpose of filing appeals provided under the Letters Patent."
2. Since the order presently impugned in the appeal is not a "judgment" and does not finally or conclusively determine the rights of the parties with regard to any of the matters in controversy nor having any finality with regard to any collateral matter, the appeal is apparently not maintainable. Even otherwise, no prejudice is shown to have been caused to the appellant by virtue of the impugned order. It is needless to state that in case of any urgency or necessity the appellant is at liberty to press for early hearing of the petition or suitable modification of the interim relief before learned Single Judge.
3. Therefore, present appeal is perceived and found to be only initiation of an additional litigation to argue the same points before two Courts, which amounts to abuse of process of the Court. Therefore, the appeal is summarily dismissed with cost quantified at Rs.2,500/- which shall be paid by the appellant to respondent no.1 herein within a period of fifteen days. Civil Application does not survive and stands disposed accordingly.
(D.H.Waghela, J.) (N.V.Anjaria, J.) *malek Top