Heard Shri Nisheeth Yadav, learned counsel for the applicant.
This transfer application has been filed with the following prayer:
"It is, therefore, Most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and to transfer the appeal under Section 96 of Civil Procedure Code bearing Appeal No. 13 of 2018 (Vinay Kumar and others V/S Jagdish and another) from the Court of Additional District Judge (I), Baghpat to another Court within the jurisdiction of District Court - Baghpat and further be pleased to direct the Court Below to stay the further proceedings of Appeal No. 13 of 2018 (Vinay Kumar and others V/S Jagdish and another), pending in the Court of Additional District Judge (I), Baghpat, so that justice may be done, and/or pass any such order or further order or direction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case."
The contention of the learned counsel for the applicant is that the plaintiff-respondents had filed a suit for injunction against the applicant. In that suit an application under Order 39 Rule 1 CPC was filed by the plaintiff-respondent in which by means of an interim order dated 24.1.2018, the trial court injuncted the defendant-applicants from interfering in the possession use and repair of the house of the plaintiff-respondent shown in the map as ? ? ? ?. It was directed by that order that in case the plaintiff-respondent do not comply with the provisions of Order 39 Rule 3 CPC, the order of injunction would be automatically vacate. It appears that thereafter another application was filed by the plaintiff-respondent bearing Paper No. 18Ga/2 stating that district administration is not allowing the plaintiff-respondent to raise the constructions. By an order dated 19.3.2018, the trial court directed the parties to maintain status quo and the Station Offficer of P.S. Khakda, District Baghpat was directed to ensure that no party changes the status of the house in dispute till the next date. Thereafter an appeal was filed by the plaintiff-respondent which is stated to be pending before the court of Additional District Judge- I, District Baghpat.
It is contended by the learned counsel that the order in appeal against is not a decree and as such is not appealable under the provisions of Section 96 of CPC. It is further contended that the appeal is also not maintainable under the provisions of Section 104 CPC.
A perusal of the memorandum of appeal that is enclosed as Annexure No. 7 reveals that it is registered as misc. appeal and not as a regular first appeal. A perusal of Annexure No. 8 which is a typed copy of the order-sheet of the appeal also reveals that it is registered as a misc. appeal. A misc. appeal has been filed by the plaintiff-respondent as is permissible under the provision of Order 43 Rule 1(r) of CPC. Under Section 104 CPC, an appeal is permitted from any order made under the rules from which an appeal is expressly allowed by the rules. Therefore, the contention of the learned counsel for the applicant that the appeal is not maintainable before the lower Appellate Court does not appeared to be correct.
Considering the fact that the miscellaneous appeal before the court below is maintainable, this transfer application is misconceived and it is, accordingly, dismissed.
Order Date :- 18.12.2019 A. V. Singh