S. N. BHARGAVA, J. - (1.) THIS is a special appeal u/s 18 of the Rajasthan High Court Ordinance, 1949 against the order dated 20th May, 1986 passed by learned Single Judge, dismissing the miscellaneous appeal under Order 43 Rule I (r) C. P. C. against the order passed by the District Judge, Kota, dismissing application for injunction of the petitioner under Order 39 Rule 1 and 2 CPC, in a pending Civil Suit.
(2.) IT is not necessary for us to go into the merits of the appeal as learned counsel for the respondents has raised a preliminary objection with regard to the maintainability of this appeal in view of bar u/s 104 (2) CPC. Learned counsel for the respondent has placed reliance on Sugan Chand v. Govind Ram Bansal (1) wherein a division bench of this court has held that no appeal lies u/s 18 of the Rajasthan High Court Ordinance against the decision of the learned Single Judge, exercising its power u/s 46 of the Municipalities Act because Section 48 of the Municipalities Act provides that the decision of the High Court on appeal u/s 46 shall be final and conclusive. He has also placed reliance on Radhey Shyam V. Sitaram (2) wherein a division bench of this Court has held that no appeal u/s 18 of the Rajasthan High Court Ordinance is maintainable against an order passed by the learned Single Judge on an application under Order 41 Rule 5 CPC filed in the writ petition under Art. 226 of the Constitution of India. Reliance has also been placed on Sardar Lal V. Umrao Lal Gupta (3) wherein a division bench of this court has held that no special appeal can be entertained u/s 18 of the Rajasthan High Court Ordinance against an order of the learned Single Judge. Learned Single Judge was dealing an appeal under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 against an order striking out the defence, in view of Section 22 of the Act which provides that no second appeal shall lie. He has also placed reliance on Shah Babulal Khimi V. Jaya Ben (4) wherein their lord-ships of the Supreme court had held as under : - "there is no inconsistency between Section 104 read with Order 43, R. l and the appeals under the Letters Patent and there is nothing to show that the Letters Patent in any way excludes or overrides the application of Sec. 104, read with order 43 rule 1 or to show that these provisions would not apply to internal appeals within the High Court. " Further, reliance has been placed on Obedur Rehraan V. Ahmedaji Bharucha (5) wherein it has been held that in view of Section 104 (2) C. P. C. Let-ters Patent appeal is not maintainable against a judgment of the learned Single Judge disposing of the appeal under Order 43 Rule 1 C. P. C. against the order of the trial court on an application for interim injunction. Same view has been expressed in another decision of the Bombay High Court in Cherity Commissioner, Bombay V. Rajendra Singh (6) wherein it has been held that the letters patent appeal was not maintainable in view of bar of Sec. 104 (2) C. P. C. when the special appeal was filed against the order of the learned Single Judge hearing an appeal under order 43 rule 1 (5) C. P. C. against the order of the District Judge on an application u/s 50 of the Bombay Public Trust Act. He has also placed reliance on an earlier decision of the Supreme Court in Union of India V. Mohindra Supply Co. (7) wherein their lordships, after discussing numerous authorities, have held that a Letters Patent appeal is not maintainable against an order of the learned Single Judge disposing of an appeal u/s 39 (1) of the Arbitration Act since Sec. 30 (2) of the Arbitration Act provides that no second appeal shall lie from the order passed in appeal under this section.
(3.) ON the other hand, learned counsel for the appellant has submitted that special appeal is maintainable and has placed reliance on Gulab Bai V. Puniya (8) which was a matter in which special appeal had been filed against the decision of the learned Single Judge while he was hearing an appeal u/s 47 of the Guardians and Wards Act, though section 48 of the Arbitration Act provides "save as provided by the last foregoing section and section 622 of the C. P. C. an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise. In this very case, the Supreme Court has further observed that what is made final by Section 48 is an order under this Act and the context show that it is an order made by the trial court under one or the other provision of the Act. The finality prescribed for the order made under this Act is subject to the provisions of Sections 47 and 622 of the earlier Code which corresponds to Section 115 of the present C. P. C. Thus, the scope and purpose of Sec. 48 is to make the orders passed by the trial court final subject to the result of the appeal or revision which may be preferred against the same. Thus, this case is quite distinguishable and does not help to the appellant. Further case relied by learned counsel for the appellant is Rukmani V. H. N. Thirumalai Chettiar (9) wherein their Lordships following their earlier authority in V. S. Bhoopathy Chettiar V. Radha Rukmani (l0) have held that the Letters Patent appeal is maintainable against an order of the learned Single Judge passed u/s 104 (1) CPC refusing to grant injunction pending appeal. There is no discussion on this point in the said authority except that they have not agreed with the view of the Bombay High Court in Obedur Rehman (supra) but have preferred to rely on the decision of their own court in V. S. Boopathy Chettiar (supra ). Learned counsel for the appellant has also placed reliance on a full bench decision of the Madhya Pradesh High Court in Laxmi Narain V. Ram-ratan Chaturvedi (11) wherein their lordships have held that a Letters Patent appeal lies against an inter-locutory order in an election matter arising out of Representation of the People Act, 1951. This authority is of no help to the appe-llant as a full bench of this court had taken a contrary view in Ramdhan V. Bhanwarlal (12 ). ;