R. M. Sahai, J. - (1.) WHILE admitting this petition directed against orders of consolidation authorities brother K. P. Singh, J. expressed doubt about the ratio laid down in Smt. Longshri v. Deputy Director of Consolidation, 1978 RD 133= 1978 AWC (SOC) 32 and directed the papers to be laid before Hon'ble the Chief Justice, obviously under proviso (b) to rule 2 of Chapter V of Rules of Court, for constituting a larger bench to decide the controversy whether this court can interfere with interlocutory orders in exercise of its extraordinary jurisdiction under Article 226 of Constitution of India. And Hon'ble the Chief Justice in exercise of his prerogative power under rule 6 of the same Chapter to list cases, before appropriate bench, passed the necessary order on the administrative side. That is how the petition came before us.
(2.) DURING arguments it was suggested that the facts as they emerge after filing of counter affidavit to which we shall advert, later on, it was not necessary to decide the specific question and the petition be referred back to learned Single Judge on the bench being seized of the entire petition it may be decided on merits. We must confess our inability to appreciate this submission. So long the order passed on administrative side by Hon'ble the Chief Justice is not set aside or rendered academic, due to change in law etc. the bench hearing the reference, is in our opinion bound to decide the question referred to it. Even otherwise it would be contrary to judicial comity to return the reference on such pretext that the question does not arise, or the learned single Judge may frame appropriate question. In our opinion the Division Bench so constituted do not enjoy any superior or higher power. The binding effect of a decision given by larger number of Judges is based on principle of stare decisis and not on superiority of power or hierarchy of courts. In R. Vishwanath v. Rukutul Mulk, AIR 1963 SC at page 29 it was observed "whatever may have been the historical reasons in England and whatever may be the technical view as to the constitution of a bench in which one of more judges sit after they have expressed their opinion not tentative but final the practice which permits Judge......... ..........to sit in case in which he had opportunity of making up his mind and to express his conclusion on merits has little to commend itself for acceptance." Having disposed off the submission of learned counsel, which can be termed as preliminary in nature we now proceed to decide the question. Interlocutory order is an order passed by a court or authority which does not determine the right of parties finally. In its ambit shall be covered numerous orders passed during pendency of suit or proceedings before a court or an authority. For instance adjournment of a case, amendment of pleading or its refusal issuing or refusing to issue injunction, staying or refusing to stay proceedings, transferring or refusing to transfer a case, so on, and so forth. None of these orders determine the rights of parties finally. But some of these orders may grieviously effect a person or may terminate a part of the controversy. Such determination has been held to be, 'case decided' with in meaning of Section 115 CPC. In S. S.Khanna v. F.S.Dhillon, AIR 1964 SC 49 Hidayatullah, J. as he then was observed and the word case does not mean a concluded suit or proceeding but such decision which determines a part of the controversy. If determination of even a part of the controversy and not the suit finally is amenable to revisional jurisdiction there appears no good reason to hold that similar determination by a court or tribunal cannot be corrected by writ of certiorari. Because in the same decision it was further observed the power which this Section (115 CPC) confers is clearly of the nature of proceeding or a writ of certiorari. In Vihiswani v. Raja Nainar, AIR 1959 SC 422 a question arose about the propriety of interference in writ petition under Article 226 with interlocutory order passed by the Election Tribunal. The Hon'ble court upheld the power of the court to issue writ "the jurisdiction of High Court to issue writs against orders of tribunal is undoubted." But as the order was appealable under Representation of Peoples Act which intended that proceedings may go on uniterrupted it was held, "it will be proper exercise of discretion u/Article 226 to decline to interfere with interlocutory order. The refusal to issue writ was because of alternative remedy and not because petition was not maintainable. In Y. B. Charon v. K. T. Mangalmorti, AIR 1958 Bombay 397 the election tribunal rejected preliminary objection that petition against the interlocutory was not maintainable as it went to the.................. of controversy. In Kunja Raman v. Krishna Iyer, AIR 1960 AP 188 it was held that a writ against interlocutory order can be issued in order to prevent extraordinary inconvenience and embarassment. In American Jurisprudence Vol. 10 para 16 page 549 it is stated : "Generally-although there is some authority to the contrary, it seems well settled that the writ of certiorari should not be granted until after a final determination. Similarly in Ferris Extraordinary legal remedies in paragraph 162 page 184 it has been stated "It is the general practice of reviewing judicial determination of inferior courts and will not therefore issue to review an interlocutory order." The interlocutory order in these American authorities appears to have been understood in narrow sense. But even these authorities have made exception by saying "generally'. In fact Article 226 is couched in widest possible terms. Its scope is ever expanding. To say therefore that a writ petition against an interlocutory order is not maintainable is not correct. But the court may refuse to interfere in exercise of its discretion unless it is satisfied of extraordinary situation. 1977 Rent Control Cases 379 Smt. Jugul Kishore Devi v. District Judge was a decision on Article 58 (2) of the Constitution which was In operation for a short spell only. We are therefore of opinion that a writ petition against interlocutory order is maintainable. And this court can interfere if it finds circumstances to be extraordinary or necessary in the interest of justice. It may now be examined if the consolidation authorities committed any mistake of law in rejecting petitioners application dated 26th December, 1979 for stay of proceedings under Section 12 of CH Act. Admittedly, opposite party no. 3 was the sole bhumidhar who transferred it in favour of opposite party no. 4 by a registered sale deed dated 4-8-78. He filed an application for mutation u/Sec. 12 which was objected by opposite party no. 5 who claimed to be co-tenant of opposite party no. 3. Petitioner claimed that opposite party no. 3 had entered into an agreement of sale on 15-12-76 and had filed a suit for specific performance therefore entire proceedings be stayed. This application was rejected by Consolidation Officer and petitioner was directed to file an objection under Section 9 if he desired to agitate his claim. In revision the order was upheld. The Deputy Director of Consolidation found that in suit of specific performance both opposite party no. 11 and her vendee were parties therefore the decision given in that suit shall be binding on them and it was not necessary to stay the proceedings as in case the suit is decreed instead of opposite party no. 4 the name of petitioner shall be mutated in revenue records. In counter affidavit it has been stated that the suit for specific performance has been dismissed on 31st August 1981. A copy of the order has been filed which shows that the civil court found that the agreement of sale was fictitious. Further it has been stated that not only mutation proceedings but even proceedings for allotment of chaks have been finalised. In these circumstances it is apparent that not only there is no extraordinary circumstances in favour of petitioner which may justify issuing a writ of certiorari but the order is eminently just and does not suffer from any error of law.
(3.) BEFORE parting with this case it is necessary however to observe that the decision in Smt. Longshri case (supra) turned on the facts of the case. It cannot be urged as a matter of law that in every case where a suit for cancellation of sale deed or gift deed is pending no suit for specific performance has been filed the consolidation authorities should stay their hands. Facts of a particular case may justify that order. Finalisation of consolidation proceedings do not effect the suit for cancellation or specific performance etc. In case consolidation proceedings are finalised in favour of 'A' on strength of sale deed but the same is cancelled or suit for specific performance is decreed in favour of 'B' no difficulty can arise and the name of 'B' can be substituted in place of *A' and possession be delivered under rules. Normally therefore proceeding before consolidation authorities should not be stayed. It is inequitable as well because an unscrupulous litigant may file a frivolous suit in civil court as in this case which may take ten years or even more in appeal and second appeal causing serious prejudice to other side. In the result this petition fails and is dismissed with costs. Petition dismissed.;