Gur Sharan Lal, J. - (1.) This special appeal is directed against the order dated 3-11-1971 of a learned Single Judge of this Court dismissing an application of the appellant praying for restraining S/Sri Lalta Prasad and sons from making any further constructions on the foot-path adjacent to the western boundary of Lady Kinniard. Hospital building and installing a petrol pump, etc. thereon. By the same order an ad interim order granted earlier restraining constructions was also vacated. The said application was moved for interim relief in connection with writ Petition No. 1312 of 1971. The concern S/Sri Lalta Prasad and Sons was opposite party No. 5 in the writ petition and is respondent No. 5 in the special appeal. The appellant is the University of Lucknow which owns the said hospital building.
(2.) A preliminary point has been raised on behalf of respondent No. 5 that the special appeal does not lie from the order impugned. We have heard learned counsel on both sides on this preliminary point and we are recording our finding on that point. Since we have come to the conclusion that the special appeal is not maintainable there is no question of hearing the appeal on merits and we are going to dismiss it on the ground of its being not maintainable.
(3.) The special appeal purports to have been filed under Rule 5 of the Chapter VIII of the Rules of Court, 1952. The said rule reads- "5-An appeal shall be 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 its power of superintendence or in the exercise of criminal jurisdiction of one Judge." The contention of the learned counsel for respondent No. 5 is that the order impugned is not a judgment because it does not finally dispose of any dispute between the parties. It is an order only in respect of an interim relief claimed by the appellant in the writ petition and the writ petition itself is pending and the rights of the parties are yet to be heard and decided. Reliance in support of the contention has been placed on a Division Bench decision of this Court in Radhey Shyam v. State of U.P., 1970 ALJ 735 . In the said case it was held that an interlocutory order of vacating an interim stay order pending the writ petition is not appealable under Chapter VIII Rule 5 of the Rules of Court. The decision is thus a direct authority in favour of the contention of respondent No. 5. The said case itself relied upon two earlier decisions, Iftikar Husain v. Sharafat Ullah, Special Appeal No. 628 of 1961, decided on 20.12.1961 and G.B. Kapoor v. District Magistrate, Etah, 1967 ALJ 990 which directly dealt with the case of granting or refusing an interim order of stay during the pendency of the main proceeding and it was held that such an order did not amount to a judgment. Two cases, Bishambhar Nath v. Suraj Kali, 1959 ALJ 313 and Standard Glass Beads Factory v. Shri Dhar, 1960 ALJ 397 FB which had been cited in support of the contention of maintainability of the special appeal were distinguished by the Division Bench. In the former case it had been held that where the effect of the decision in the proceedings in which it was made was to put an end to the proceedings so far as the Court before which that proceeding was pending was concerned, the adjudication would be a "judgment" within the meaning of the term as contained in Rule 5 Chapter VIII of Rules of Court. In the second case the Full Bench held that an order of a Single Judge of the High Court dismissing an appeal against an order by lower court granting a temporary injunction would he a "judgment" within the meaning of the aforesaid provision. Though, as contended by the learned counsel for the appellant, there is no lengthy discussion of the two decisions which were distinguished, it is obvious from what has been said in paragraph 4 of the report of the judgment in Radhey Shyam's case that they were distinguished because in those cases the proceedings in which the decision was given were finally over with that decision whereas in the writ petition case between the parties to this special appeal there was no decision of rights between the parties since the writ petition was still pending. Learned counsel for the appellant has, besides relying on the said two decisions which have been distinguished in Radhey Shyam's case, also cited the latest case of Khurshedbagh Housing Co-operative Society Ltd. v. Smt. Satya Devi, 1971 ALJ 223 , which is a case in which an order against which the special appeal was filed was held to be a "judgment". In that case land was being acquired for the appellant and the appellant had already entered into an agreement with the State Government and had deposited the requisite amount in that regard. In a writ petition filed in the High Court relating to that acquisition, the said Society which had not been made a party by the petitioner, applied for being impleaded as a party on the ground that it was a proper party within the meaning of Order I, Rule 10 (2), C.P.C. and its presence before the court was necessary for a complete adjudication upon, and settlement of, all the questions involved in the proceeding. The application was rejected and the special appeal in question was directed against the order of rejection. It was held by the Division Bench hearing the special appeal that a special appeal lay against the rejection order because the order finally determined against the appellant the matter of its impleadment as a party in the writ petition. The case Gopal Behari Kapoor v. District Magistrate, Etah and two other cases, Siya Ram v. Nathu Ram, 1968 ALJ 576 and Radhey Shyam v. State of U.P. (supra), were only distinguished and no difference in opinion was expressed from the rule laid down in those cases. The case therefore does not help the appellant. We may usefully reproduce from the judgment in the case of Iftikar Husain v. Sharafat Ullah the distinguishing feature of the cases in which a special appeal has been held not to lie from an order granting or refusing interim relief from the cases in which an order has been held to be "judgment" with a special appeal being maintainable against it : "An application for an interim order of stay is not based on a right, evidently it cannot be based on a right which itself is under investigation in the main case. "It is rather based on a ground of expediency, the object behind it being to preserve certain state of affairs in which the final order to be passed in the case may operate to the fullest advantage. No one can claim to have a right to a particular stay order. Therefore, an order granting or refusing an interim order of stay does not decide any question of right and does not amount to a judgment.";