BHIKHABHAI KALYANBHAI Vs. PIRABHAI VAGHABHAI
LAWS(GJH)-1988-4-9
HIGH COURT OF GUJARAT
Decided on April 15,1988

Bhikhabhhi Kalyanbhai Appellant
VERSUS
PIRABHAI VAGHABHAI Respondents





Cited Judgements :-

SWAMI SHIVRAMDASJI GURU RAMSARANDASJI VS. VASANTIBEN DAHYABHAI MODI [LAWS(GJH)-2011-11-89] [REFERRED TO]
JAIMIN J DESAI VS. GUJARAT CHAMBER OF COMMERCE AND INDUSTRY [LAWS(GJH)-1999-12-83] [REFERRED TO]


JUDGEMENT

P.R.GOKULAKRISHNAN - (1.)The appellant herein was the defendant in Regular Civil Suit No. 62 of 1984. The said suit was for granting mandatory injunction requiring the appellant herein to remove the construction he has put in before filing of the suit and for perpetual injunction restraining the appellant from putting any further construction and also restraining the appellant from obstructing the respondent herein from putting construction on the suit plan. It is the case of the respondent herein that the plot on which the appellant has put in construction was allotted to him by the Taluka Development Officer Dhandhuka and that inspite of that the appellant herein had constructed a wall in that plot. By application Exh. 5 in that said suit the respondent herein applied for temporary injunction restraining the appellant herein from putting any construction and also restraining him from obstructing the respondent herein in putting construction over the suit plot. On that Exh. 5 the learned trial Judge granted an interim temporary injunction. By virtue of the said injunction granted the respondent has pulled down the wall put up by the appellant herein. Ultimately the Regular Suit No. 62 of 1984 came to be dismissed by the learned trial Judge. As against the judgment and decree of the learned trial Judge the respondent herein who was the plaintiff in the original suit filed Regular Civil Appeal No. 132 of 1985 on the file of District Court at Narol. Along with the appeal the respondent herein applied for temporary injunction praying the very same relief he has prayed for in Exh. 5 before trial Court. The Appellate Court granted the interim injunction and as a result of the said injunction the respondent herein put up further construction on the suit land and has constructed a house up to roof level. Ultimately the District Judge allowed the Regular Civil Appeal No. 132 of 1985 by decreeing the suit as prayed for by the respondent herein. As against the judgment and decree of the learned Appellate Court the appellant herein who is the defendant in the suit has filed the Second Appeal No. 186 of 1987 before this Court. The appellant herein has also filed Civil Application No. 1928 of 1987 in the said Second Appeal praying for the stay of the execution and operation of the decree passed by the Lower Appellate Court. The High Court admitted the Second Appeal and had granted ad interim relief maintaining the status quo order on the Civil Application No. 1928 of 1987. The respondent herein Sled Civil Application No. 2040 of 1987 in the Second Appeal and wanted to vacate the status quo order passed in Civil Application No. 1928 of 19B7 with a further prayer that the respondent herein should be permitted to put up the roof over the house constructed by him on the suit plot. The said Civil Application No. 2040 of 1987 came up for hearing on 24-12-1987 and the Honble Single Judge of this Court has passed an order stating No order on this C. A. at this stage. Subsequent to this order the respondent herein put in a second application-C. A. No. 115 of 1988 praying the very same relief he has prayed in Civil Application No. 2040 of 1987. The said Civil Application was heard by the learned single Judge of this Court and he passed an order on 14/03/1988 granting the relief prayed for by the respondent herein by permitting the respondent to complete the construction and put up the roof over the walls already constructed. Except to this limited extent the learned single Judge stayed the rest of the construction given in the judgment and decree of the learned Appellate Court. Aggrieved by the said order of the learned single Judge the present Letters Patent Appeal has been filed by the original defendant who is the appellant in the Second Appeal.
(2.)Without going into the merits of the case we wanted Mr. Nagin N. Gandhi the learned Counsel appearing for the appellant to satisfy us as to the maintainability of the Letters Patent Appeal under Clause 15 of the Letters Patent. Mr. Gandhi learned Counsel appearing for the appellant submitted that Civil Application No. 1928 of 1987 was filed for the stay of the judgment and decree granted by the Lower Appellate Court wherein the Lower Appellate Court granted the mandatory injunction prayed for by the respondent herein requiring the appellant herein to remove the construction that he had put up and also for perpetual injunction restraining the appellant herein from putting up further construction and also for restraining the appellant herein from obstructing the respondent herein in putting up construction on the suit plot. Thus in effect the appellant herein prayed for the stay of the injunction order granted by the Lower Appellate Court. This prayer according to Mr. Gandhi is in the nature of granting injunction under Order 39 Rules 1 and 2 of the Civil Procedure Code. If an order is passed in a petition filed under this provision of the Civil Procedure Code according to Mr. Gandhi an appeal is available as per Order 43 of the Civil Procedure Code. Mr. Gandhi learned Counsel appearing for the appellant reading Sec. 104 of the Civil Procedure Code with Order 43 Rule 1(r) contends that an appeal under Clause 15 is maintainable. Mr. Gandhi further submits that as per Sec. 100A of the Civil Procedure Code it is only the decision by a single Judge of the High Court finally given in any appeal from an appellate decree or order no LPA is maintainable and not in respect of interlocutory order of this nature from which an appeal has been preferred now.
(3.)Section 100A of the Civil Procedure Code reads as follows:
"100A.(1) Notwithstanding anything contained in any other instrument having the force of law or in any other law for the time being in force where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court no further appeal shall lie from the judgment decision or order of such single Judge in such appeal or from any decree passed in such appeal."
Section 104 of the Civil Procedure Code reads as follows:
" 104 (1) An appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders

(a)to (f) (Omitted by Arbitration Act 1940

(ff) an order under Sec. 35A

[(ffa) an order under Sec. 91 or Sec. 92 refusing leave to institute a suit of the nature referred to in Sec. 91 or Sec. 92 as the case may be;]

(g) an order under Sec. 95;

(h) an order under any of the provisions of this Code imposing a fine or detecting the arrest or detention in the Civil Prison of any person except where such arrest or detention is in execution of a decree;

(i)any order made under Rules from which an appeal is expressly allowed by Rules;

Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order or an order for the payment of a less amount ought to have been made.

(2) No appeal shall lie from any order passed in appeal under this section."
Order 43-1(r) reads as follows:
"1. An appeal shall lie from the following orders under the provisions of Sec. 104 namely

(r) an order under Rule 1 Rule 2 (Rule 2A) Rule 4 or Rule 10 of Order XXXIX."
Clause 15 of the Letters Patent reads as follows:
"15 And we do further order in that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Sec. 107 of the Government of India Act. or in the exercise of Criminal Jurisdiction) of one Judge of the said High Court or one Judge of any Division Court pursuant to Sec. 108 of the Government of India Act and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to Sec. 108 of the Government of India Act made on or after the first day of February one thousand nine hundred and twenty-nine in the exercise of Appellate Jurisdiction in respect of a decree or order made in the exercise of Appellate Jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us Our heirs or successors in our or their Privy Council as hereinafter provided."

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