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2017 (1) TMI 1827
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....An appeal shall lie from a judgment or order passed by one judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two judges of the same High Court. Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India." 3. The issue raised before us is whether the proviso quoted hereinabove totally bars filing of appeals against all interim orders or not. Before dealing with the various authorities, we may point out that the provisions of this Act are identical to the provisions of the Madhya Pradesh Ucch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam (14 of 2006) (hereinafter called the 'MP Act'). The provisions of the MP Act have been considered by a Full Bench of the Madhya Pradesh High Court in Arvind Kumar Jain v. State { AIR 2007 Madhya Pradesh 276}. This judgment is the sheet anchor of the arguments of those counsel who urged that the proviso does not bar filing of appeals against all interlocutory orders. 4. On the other hand, learned counsel for the Respondents....
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....ent', the Apex Court held as under: "114. In the course of the trial, the Trial Judge may pass a number of orders whereby some of the various steps to be taken by the parties in prosecution of the suit may be of a routine nature while other orders may cause some inconvenience to one party or the other, e.g., an order refusing an adjournment, an order refusing to summon an additional witness or documents, an order refusing to condone delay in filing documents, after the first date of hearing an order of costs to one of the parties for its default or an order exercising discretion in respect of a procedural matter against one party or the other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the Trial Judge. 115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, order....
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.... of the main case or which determines the rights and obligation of the parties in a final way indubitably they are appealable." 10. Thereafter, the Full Bench recorded its conclusions. We are concerned only with conclusions (d), (e), (f), (g) and (h) which read as follows: "31. In view of the aforesaid premised reasons we proceed to record our conclusions in seriatim: (a) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (d) The proviso to Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 does not create an absolute bar to prefer an appeal to the Division Bench. (e) An appeal can be preferred against an order regard being had to the nature, tenor, effect and impact of the order passed by the learned Single Judge. (f) The guidelines given in the cases of Shah Babulal Khimji (supra), Central Mine Planning and Design Institute Ltd. (supra), Deoraj (supra), Liverpool & London S.P. & I. Association Ltd. (supra), Subal Paul (supra) and Midnapore Peoples' Cooperative Bank Ltd. (supra) are to be kept in view while deciding the maintainability of an appeal. (g) It should be borne in mind that instances given in the aforesaid decisions....
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.... general enactment and provide for them specially. 34. A proviso qualifies the generality of the main enactment by providing an exception and taking out from the main provision, a portion, which, but for the proviso would be a part of the main provision. A proviso must, therefore, be considered in relation to the principal matter to which it stands as a proviso. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself. 35. Indeed, in some cases, a proviso, may be an exception to the main provision though it cannot be inconsistent with what is expressed in the main provision and if it is so, it would be ultra-vires of the main provision and struck down. As a general rule in construing an enactment containing a proviso, it is proper to construe the provisions together without making either of them redundant or otiose. Even where the enacting part is clear, it is desirable to make an effort to give meaning to the proviso with a view to justify its necessity." 14. In Director of Education (Secondary) v. Pushpendra Kumar { AIR 1998 SC 2230} the Apex Court held as follows: "12..... An exception ca....
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....ry word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC 1 : 4 MIA 178] "we cannot aid the Legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there". In case of an ordinary word there should be no attempt to substitute or paraphrase of g....
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....nterlocutory order. 21. The scope and ambit of the word "interlocutory orders" has been considered by the Apex Court in the context of the Criminal Procedure Code in a number of cases. In Amar Nath & Others v. State of Haryana & Another { (1977) 4 SCC 137} it was observed as under: "6....The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub-section (2) of section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appellable must be those which decide 'the rights and liabilities of the parties concerning a particular aspect. It seems to, us that the term "interlocutory order" in section 397(2) of the 1973 Code has been used in a restricted sense and no....
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....herent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is-the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exe....
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....on 115 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had, however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. In Baldevdas v. Filmistan Distributors (India) Pvt. Ltd. { (1969) 2 SCC 201} it has been pointed out : "A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy." We may give a clear example of an order in a civil case which may not be a final order within the meaning of Article 133(1) of the Constitution, yet it will not be purely or simply of an interlocutory character. Suppose for example, a defendant raises the plea of jurisdiction of a particular Court to try the suit or the bar of limitation and succeeds, then the action is determined finally in that Court. But if the point is decided against him the suit proceeds. Of course, in a given case the point raised may be such that it is interwoven and interconnected with the other issues in the case, and that it may not ....
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.... interlocutory and which kinds of orders would be final. However, we would like to give examples of one or two orders which may be interim in nature and do not bring the entire proceedings to a closure but decide matters of moment and have an element of finality attached to them. A writ Court, by way of interim relief may grant admission to the petitioner in a medical college. This order virtually amounts to allowing the writ petition and could be termed as an order having an element of finality attached to it. On the other hand, the order refusing to grant interim relief would be an interlocutory order. 27. In the same way, when a party files an application that it has vital interest in the proceedings and must be heard in the matter and if such an application is allowed, the order would be an interlocutory order. However, if the application is rejected and the party is ordered not to be impleaded, then the said order has an element of finality attached to it and as far as that party is concerned and an appeal would lie. 28. Another example would be where an order of demolition is challenged in a writ petition in which demolition is to take place in a day or two. If the writ Cou....
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....ision Bench) Act, 2006 bars appeal against interlocutory order. (See para 19 of the opinion.) 32. Second part of the opinion formed by My Lord, Hon'ble the Chief Justice is with regard to the question as to what are the interlocutory orders. With great respect and in all humility at my command, I find myself unable to concur with the opinion so expressed therein and proceed to record my difference of opinion as under: - 33. The Division Bench has made reference to this Bench for answering the stated question as mentioned in para 1 of the opinion in exercise of power conferred to the Division Bench under Rule 35 of the High Court of Chhattisgarh Rules, 2007. Reference jurisdiction is consultative or advisory jurisdiction of the larger Bench which he renders on opinion being asked by the smaller Bench which may be either a Single Bench or it may be a Division Bench and it is purely advisory in nature. The larger Bench, as the case may be, as in the present case is the Full Bench, is to extend its advise in its jurisdiction which is advisory in nature and purely consultative in nature to enable the referring Benches, who are smaller in composition, to dispose of the matter, as t....
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.... to dispose of the second appeal according to law." 37. Likewise, in the matter of Kerala State Science & Technology Museum v. Rambal Co. and others (2006) 6 SCC 258, the Supreme Court has held in unmistakable terms that jurisdiction of the larger Bench is confined in case of reference on the specific issue and the larger Bench cannot adjudicate upon the issue which is not the question referred to it and observed as under (SCC p.262, para 8): - "8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to." 38. In the matter of T.A. Hameed v. M. Viswanathan (2008) 3 SCC 243, the Supreme Court has also held that since only a reference was made to the Full Bench of the High Court, the Full Bench should have answered only the question referred to it and remitted the matter to the Division Bench for deciding the matter on merits. It has been observed as under (SCC p. 245, para 12): - "12.... Since, only reference was made to the Full B....
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....f referred in specific terms but not beyond it. As a matter of fact, our advisory reference jurisdiction would arise only when the stated question/s is referred but not otherwise. 28. Now so far as Rules on the issues are concerned, suffice it to say, the M.P. Rules take care of all situations arising in the case. A reference to Rules 8 to 12 of Chapter 4 which deal with reference to larger Bench may be sufficient to mention in this regard. 29. In the light of foregoing discussion, judicial discipline demand that we should not probe into any legal debate arising in the case and nor should embark upon any exercise for deciding issues which may have arisen except to decline to answer the reference that being the only option left in such circumstances. We accordingly decline to do so." 42. Another Full Bench of this Court in the matter of Alok Nigam v. Union of India and Ors. AIR 2007 Chhattisgarh 81 while considering the scope of reference made to Full Bench held that when the scope of reference is particular and specific, then the Full Bench has to answer the reference only. The Full Bench cannot go beyond that. It has been observed as under: - "2. Shri M.L. Verma and Shri A.....