- (1.) In the instant intra-court appeal, the appellant has assailed the order dated 18th February, 2014, passed by the learned Single Judge in Civil Regular First Appeal Number 453 of 2003 (Bharat Bhushan Pareek v. Ambrish Chand Kudasiya & Anr.) on a miscellaneous application, which sought for vacation of the conditional stay order dated 24th October, 2007, in view of the default of the condition number 4 therein. Briefly, the indispensable material facts necessary for appreciation of the controversy needs to be outlined first. The respondents instituted a Civil Suit against the appellant for eviction claiming damages for use and occupation of the premises in dispute in November, 2000. The appellant denied the relationship of landlord-tenant since the landlord and respondents were not title holder. The learned Trial Court decreed the Civil Suit vide judgment and decree dated 25th July, 2003. The appellant filed an appeal being Civil Regular First Appeal Number 453/2003, which was admitted. The learned Single Judge on 24th October, 2007, made an order directing the appellant to pay an amount of Rs. 9,800/- (Rupees : Nine Thousand) as mesne profit as condition number four aside three other conditions. The fourth condition stipulated, is in regard to institution of execution proceedings, by the plaintiffs/respondents, during the pendency of the appeal, in the event of default in payment of mesne profit for consecutive three months. The respondent number 1 filed a miscellaneous application stating default in payment for three consecutive months i.e., November, December, 2001 and January, 2012, and therefore, sought permission for institution of execution proceedings, during the pendency of the appeal, in view of default of the conditional order dated 24th October, 2007, with a further prayer for vacation of the conditional stay order as well. The learned Single Judge granted the application for execution of decree of eviction during the pendency of the appeal vacating the conditional stay order dated 24th October, 2007, which is impugned herein.
(2.) On institution of the instant intra-court appeal, the Registry of this High Court pointed out a defect as to the maintainability of the Special Appeal in the face of Rule 134(i) of the Rajasthan High Court Rules, 1952 (hereinafter referred to as the 'Rules of 1952', for short). The objection has been responded by the appellant with the statement that the instant Special Appeal has been preferred under Rule 134(H) of the Rules of 1952. Rule 134 of the Rules of 1952, contemplates appeal under sub-clause (i) 'APPEAL' whereas sub-clause (ii) deals with 'SPECIAL APPEAL' and the two provisions are distinct and separate from each other, intended for different purpose inherent in the language of Rule 134 of the Rules of 1952, and therefore, should not be confused by a conjoint reading of Rule 134. The bar imposed vide Rule 1340), is not applicable to a 'SPECIAL APPEAL' under sub-clause (ii) of Rule 134 of the Rules of 1952. In order to reinforce has stand, reliance is placed on the opinion of the Coordinate Bench of this Court, in the case of Jaipur Metro Rail Corporation Limited v. Alok Kotahwala & Ors.,2013 2 WLC(Raj) 381. On 16th April, 2014. When the matter came up before this Court, the respondents entered appearance. A copy of the memo of the special appeal along with annexures thereto, was furnished and the matter was posted to 23rd April, 2014, for consideration on the issue of maintainability of the Special Appeal.
(3.) Since the learned counsel for the respondents have raised the question of maintainability of the intra-court appeal, as such, we have heard the matter at length, confining ourselves, only to the question of maintainability of the Special Appeal,;