Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai .

Dr. B.S Chauhan, J.:— This Special Appeal has been filed under Chapter VIII. Rule 5 of the Allahabad High Court Rules, 1952, against the order dated 11-9-2003, by which the learned Single Judge has stayed the further proceedings in a matrimonial matter pending before the Family Court, Allahabad.

2. Facts and circumstances giving rise to this case are that the appellant filed Matrimonial Case No. 544 of 1999 before the Family Court, Allahabad seeking divorce from the respondent. During the pendency of the trial of the said case, parties had approached this Court by filing a Civil Misc. Writ Petition No. 333 of 2000 (Smt. Ranjana Bajpai v. Shri Ashok Bajpai); Civil Misc. Writ Petition No. 17655 of 2003, (Ashok Kumar Bajpai… v. Dr. (Smt.) Ranjana Bajpai….); and F.A.F.O (D) 734 of 2003, (Dr. Smt. Ranjana Bajpai v. Shri Ashok Bajpai) and the said petitions as well as the appeal were disposed of on merit. However, while deciding the Writ Petition No. 17655 of 2003, vide judgment and order dated 24-4-2003, directions were issued to conclude the trial of the aforesaid case expeditiously, preferably within a period of 6 months. Again on 26-8-2003, while disposing of the appeal, this Court observed that unwarranted adjournments should not be granted to either of the parties and the Family Court should proceed with the trial day to day and conclude the trial expeditiously as directed earlier vide order dated 24-4-2003.

3. The respondent-petitioner, filed a Transfer Application under Section 24 of the Code of Civil Procedure, 1908 (hereinafter called C.P.C) of the Matrimonial Case No. 544 of 1999, pending in the Family Court, Allahabad seeking its transfer to some other competent Court, on various grounds. The learned single Judge while entertaining the said transfer application on 11-9-2003, passed the following order:—

“Shri A.N Tripathi, learned counsel for the respondent prays for and is granted one week time to file counter-affidavit. Learned counsel for the applicant will have 10 days thereafter to file rejoinder affidavit. List this petition in the week commencing 13-10-03.

Until the next date of listing, further proceedings in Matrimonial Petition No. 544/99 pending in the Family Court, Allahabad shall remain stayed.

The comments of the Presiding Officer may also be called for in the meantime.”

4. Being aggrieved, this appeal has been preferred by the appellant-respondent.

5. Shri A.N Tripathi, learned counsel for the appellant has submitted that the case had been pending before the Family Court for more than 4 years and in the meanwhile, parties have approached this Court several times. The transfer application has been filed only to delay the conclusion of the trial. The relief granted by the learned single Judge is unwarranted, as staying the further proceedings has seriously prejudiced the cause of the appellant-applicant. As it amounts to final relief, it becomes liable to be set-aside.

6. On the contrary, Shri Ravi Kiran Jain, learned Senior Counsel, appearing for the respondent-petitioner has raised preliminary objection regarding maintainability of the Special Appeal contending that provisions of Chapter VII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter called the ‘Rules’) do not envisage the appeal against such an order. Appeal is provided under the said Rules only against the judgment. The aforesaid impugned order cannot be termed as “judgment” by any means and, therefore, the appeal is not maintainable.

7. Learned counsel for the appellant Shri A.N Tripathi has placed reliance upon the large number of judgments and submitted that as the impugned order has prejudiced the cause of the appellant and the relief granted by the Court is of the nature which could have been granted only at the stage of disposal of the case, the appeal is maintainable.

8. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

9. The Hon'ble Apex Court consistently has been emphasizing that the Court while dealing with the case at an interim stage cannot grant a relief which amounts to final relief. (Vide Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : AIR 1983 SC 603; Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 : AIR 1984 SC 653; Union of India v. Oswal Woolen Mills Ltd., (1984) 2 SCC 646 : AIR 1984 SC 1264; Assistant Collector, Central Excise v. Dunlop India Ltd., (1985) 1 SCC 260 : AIR 1985 SC 330; Samarias Trading Company Pvt. Ltd. v. S. Samuel, (1984) 4 SCC 666 : AIR 1985 SC 61; State of Rajasthan v. Swaika Properties, (1985) 3 SCC 217 : AIR 1985 SC 1289 : State of West Bengal v. Calcutta Hardware Stores. (1986) 2 SCC 203 : AIR 1986 SC 614; State of Jammu and Kashmir v. Mohammad Yaqoob Khan, (1992) 4 SCC 167; U.P Junior Doctors' Action Committee v. Dr. B. Sheetal Nandwani, 1992 Supp (1) SCC 680 : AIR 1992 SC 671; Guru Nanak Dev University v. Parminder Kumar Bansal, (1993) 4 SCC 401 : AIR 1993 SC 2412; St. John's Teachers Training Institute (for Women) v. State of Tamil Nadu. (1993) 3 SCC 595 : (AIR 1994 SC 43); Dr. B.S Kshirsagar v. Abdul Khalik Mohd. Musa. 1995 Suppl (2) SCC 593; The Bank of Maharashtra v. Race Spinning and Transport Company (P.) Ltd., (1995) 3 SCC 257 : AIR 1995 SC 1368 : Commissioner/Secretary. Government Health and Medical Education Department v. Dr. Ashok Kumar Kohli, 1995 Supp (4) SCC 214 : Visakhapatnam Dock Labour Board v. E. Atchanna, (1996) 2 SCC 484; Union of India v. Shree Ganesh Steel Rolling Mills Ltd., (1996) 8 SCC 347; State of Madhya Pradesh v. M.V Vyavsaya and Co., (1997) 1 SCC 156 : AIR 1997 SC 993 : Council for Indian School Certificate Examination v. Isha Mittal, (2000) 7 SCC 521 and Union of India v. Modi (Luft) Ltd., (2003) 6 SCC 65 : (AIR 2003 SC 2218).

10. The logic behind this remains that the ill-conceived sympathy masculates as interlocutory judgment exposing judicial discretion to criticism to de-generating private benevolence and the Court should not be guided by misplaced sympathy, rather it should pass interim orders making accurate assessment of even the prima facie legal position. The Court should not embrace the authorities under the statue by taking over the functions to be performed by the Statutory Authorities.

11. In Union of India v. Era Educational Trust, (2000) 5 SCC 57 : AIR 2000 SC 1573, the Hon'ble Supreme Court after considering its large number of judgments held that while passing interim order in exercise of writ jurisdiction under Article 226 of the Constitution, principles laid down for granting interim relief under Order XXXIX of CPC should be kept in mind. It can neither be issued as a matter of right nor it should be in the form which can be granted only as final relief.

12. In Morgan Stanley Mutual Fund v. Kartik Das, (1994) 4 SCC 225 : (1994 AIR SCW 2801), the Hon'ble Apex Court held that ex-parte injunction could be granted only under exceptional circumstances. The factors which should weigh for grant of injunction are — (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex-parte injunction would involve greater injustice than grant of it would involve; (c) even if ex parte injunction should be granted, it should only be for limited period of time; and (d) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.

13. In Burn Standard Co. Ltd. v. Dinabandhu Majumdar, (1995) 4 SCC 172 : AIR 1995 SC 1499, the Hon'ble Supreme Court deprecated the practice of grant of interim relief which amounts to final relief, observing that High Court should exercise its discretion, while granting interim relief, reasonably and judiciously and, if loss can be repairable or the loss can be satisfied by giving back wages etc. in the end if petition ultimately succeeds, it is not desirable that the relief should be granted by interim order. Hon'ble Apex Court further observed as under:—

“It should be granted only in exceptional circumstances where the damage cannot be repaired, for the reason that if no relief for continuance in service is granted and ultimately his claim…… is found to be acceptable, the damage can be repaired by granting him all those monetary benefits which he would have received had he continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief.”

14. In exceptional circumstances, where for one reason or the other Court feels compulsion to grant an interim relief which amounts to final relief, the Court must record reasons for passing such interim relief. In Mohd. Yaqoob Khan, (1992 (4) SCC 167) (supra), the Hon'ble Supreme Court observed as under:

“Therefore, an order in the nature of mandatory direction could not have been justified, unless the Court was in a position to consider the objections and record a finding, prima facie in a nature, in favour of the writ petitioner”.

15. Similarly, in U.P Junior Doctors' Action Committee, (1992 Supp (1) SCC 680 : AIR 1992 SC 671) (supra), the Hon'ble Apex Court observed as under:

“Taking an overall picture of the matter, we are of the view that unless there is any special reason to be indicated in clear terms in an interlocutory order as a rule no provisional admission should be granted and more so, into technical courses.”

16. In view of the above, it is evident that the Court should not grant interim relief which amounts to final relief and in exceptional circumstances where the Court is satisfied that ultimately the petitioner is bound to succeed and fact-situation warrants granting such a relief, the Court may grant the relief but it must record reasons for passing such an order and make it clear as what are the special circumstances for which such a relief is being granted to a party.

17. provisions of Chapter VIII, Rule 5 of the Rules read as under:—

“5. Special appeal.— An appeal shall lie 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 revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award — (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.”

18. The expression ‘judgment’ has been defined in Section 2(9) of CPC, as judgment means the statement given by the Judge on the grounds of a decree or order. Thus the essential element in the ‘judgment’ is the statement of grounds of decision, meaning thereby the Court has to state the ground on which he bases his decision. It must be intelligible and must have a meaning. It has a distinction from a word order as the latter may not contain reasons. Unless, the judgment is based on reason, it would not be possible for an Appellate/Revisional Court to decide as to whether the judgment is in accordance with law. (Vide Surendra Singh v. State of U.P, AIR 1954 SC 194 and Arjan Das Ram Lal v. Jagan Nath Sardari Lal, AIR 1966 Punjab 227).

19. The expression ‘judgment’ means a final adjudication by the Court of the rights of the parties; an interlocutory judgment, even if it decides an issue or issues without finally determining the rights and liabilities of the parties, is not a judgment, however, cardinal the issue may be (Tarapore & Co. Madras v. Tractors Export Moscow, AIR 1970 SC 1168).

20. Judgment is statement of reasons given by the Judge (Vide Vidyacharan Shukla v. Khubchand Beghel, AIR 1964 SC 1099).

21. A judgment is the expression of the opinion of the Court arrived at after due consideration of the evidence and the arguments, it means a judicial determination vide U.J.S Chopra v. State of Bombay, AIR 1955 SC 633 and State of Bihar v. Ram Naresh Pandey, AIR 1957 SC 389. In Ghourlal Mitra v. Smt. Hara Sundari Paul, AIR 1974 Cal 331, it was held that ‘judgment’ means a decision which affects the merits of the question between the parties by determining some right or liability and such decision might be either final or preliminary or interlocutory.

22. Whether a particular order becomes a judgment or not would depend upon the facts, circumstances and nature of the decision in each case, where an issue is finally determined like in case the issue of limitation is determined that may become a judgment, but the judgment must finally decide the rights of the parties as has been held in Kapur Singh v. Union of India, AIR 1957 Punjab 173 (FB); and Union of India v. Ain Kumar Kaluram, AIR 1962 Madh Pra 190. In Draoupadi Devi v. S.K Dutta, AIR 1957 All 48, this Court has observed that although a decree follows a judgment that does not mean that the decree and judgment are synonymous terms. The word ‘judgment’ in the Letters Patent does not have the same meaning which is given to the word judgment in the C.P.C

23. Similarly in Smt. Indo Devi v. Board of Revenue, AIR 1957 All 116, the Division Bench of this Court while considering the provisions of Article 133 of the Constitution observed that the word used therein a decision finally determining the rights of the parties in the proceedings which is altogether different from its definition given in CPC.

24. In Raman Lal v. Murari Lal, 1961 All LJ 561, this Court while dealing with the issue of Special Appeal as provided under Chapter VIII, Rule 5 of the Rules held that the word “judgment” in the said Rule requires to be interpreted in its own setting and not with consonance with the definition clause in the CPC or with reference to rights of appeal provided under the C.P.C

25. Judgment is the adjudication of proceedings or the suit, as the case may be, final order means an order which finally decides any matter or that which is directly an issue in the case in respect of the parties. The words judgment, decree or final order has a different connotation, though all of them refer to adjudication, determination or disposal of proceedings, suit or rights of the parties (Vide Union of India v. Kanhaiya Lal Shyam Lal, AIR 1957 Punj 117 (FB).

26. In Shri Radhey Shyam v. Shyam Behari Singh , (1970) 2 SCC 405 : AIR 1971 SC 2337, the Hon'ble Supreme Court examined the issue as to whether an appeal arising out of proceedings under Order 21 Rule 90, CPC could be said to be a judgment and held that an order in such proceeding is a judgment in as much as the proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly debars the purchaser of rights accrued, as a result of the auction sale, therefore, the order would fall within the definition of judgment and would be appealable. While, deciding the said case, the Hon'ble Apex Court approved the (Full Bench) judgment of the Delhi High Court in Begum Aftab Zamani v. Lal Chand Khanna, AIR 1969 Delhi 85, wherein it was held that any order which affects the merits of controversy between the parties by determining some disputed rights or liability would mean judgment.

27. In Shanti Kumar R. Canji v. Home Insurance Co. of New York, (1974) 2 SCC 387 : AIR 1974 SC 1719, while dealing with the similar issue, the Hon'ble Apex Court observed as under:—

“In finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merit of the action between the parties by determining some right or liability. The right or liability is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability”.

28. Similar view has been reiterated by the Division Bench of this Court in large number of cases. In Committee of Management, Sujobai Girls Inter College, Hathras v. Manju Keshi Dixit, 1999 (4) All WC 3167, the Division Bench of this Court held that if an interim relief has the sequence of allowing the writ petition, the order would amount to judgment within the meaning of Rule 5 of Chapter 8 of the Allahabad High Court Rules, would be appealable. The Court further observed that when the interim order was passed, then interim order which amounted to final relief, recording of reason was necessary.

29. Similarly in State of U.P v. Param Hansh Singh, (2001) 3 All WC 2160 : (2001 All LJ 2073 : 2002 Lab IC 158), a similar view has been reiterated. It was held that if interim order amounts to final relief claimed in the writ petition, the Special appeal is maintainable as the Court held as under:

“In our opinion, the contention raised has no substance. The provisions of Chapter VIII, Rule 5 of the Rules do not prohibit filing of a special appeal against an interim order. If the interim order is of such a nature which grants principal relief claimed in the writ petition, the special appeal against such an order cannot be held to be barred.”

30. Similar view has been reiterated in Hind Lambs Ltd. v. Deputy Labour Commissioner, Agra, (2002) 3 All WC 1908 : (2002 All LJ 2065), and State of U.P v. Kumari Renu Tiwari, (1993) 2 UPLBEC 1325; Prof. Y.C Simhadri, Vice-Chancellor Banaras Hindu University v. Deen Bandhu Pathak, (2001) 3 UPLBEC 2373 : (2001 All LJ 2081 : 2001 AIHC 4978). As in all these cases it was held that interlocutory order which decides matter of amendment or affects vital and valuable rights of the parties and which works serious injustice to the parties concerned, is a judgment and as such is appealable.

31. In Sandeep Agarwal v. Adarsh Chaddha, (2002) 4 All WC 3083, the Court held that when the order of the Court has trappings of final order it would be appealable for the reason that there may not be final adjudication of the case nor the proceedings may come to an end, but if the order grants relief which could have been granted after final adjudication on the disputed questions, it would amount to judgment.

32. In Society Madarsa Mazahir Ulopm Mubarak Shah Saharanpur… v. Muzaffar Hussain…., (1994) 1 All WC 55, it was held that whether the order passed by the Court affects the valuable right and amount to prehearing the judgment, it would be appealable. While deciding the said case, the Court placed reliance upon the large number of judgments including the Nagar Palika Inter College, Jaunpur v. Dr. Hawaldar Singh, (1993) 3 All WC 1362 : 1993 All LJ 1247) and Committee of Management of SSW Post Graduate College, Hapur v. Sushil Kumar Sharma, (1993) 2 UPLBEC 1263.

33. In Asrumati Debi v. Kumar Rupendra Deb Raikot, AIR 1953 SC 198, the Hon'ble Supreme Court examined the issue as to whether an order transferring a suit for trial from one Court to another amounts to a judgment for the purpose of filing the Letters Patent Appeal the Hon'ble Apex Court held as under:—

“But a decision on any and every point in dispute between the parties of a suit is not necessarily a “judgment”. The order in the present case neither affects the merit of the controversy between the parties in the suit itself nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground…………”

34. On the other hand, an order of transfer of a case is, in the first place, not at all an order made by the Court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another Court. The proceedings in the latter, to be taken only from the stage on which they were left in the Court in which the suit was originally filed.

35. The Hon'ble Apex Court in Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8 : AIR 1986 SC 1786, examined this issue at great length and considered large number of judgments. The Hon'ble Supreme Court approved the law laid down by the Madras High Court in T.V Tuljaram Row v. M.K.R.V Alagappa Chettiar, (1912) ILR 35 Mad 1, in which the Court had laid down the test to assess and determine the import and definition of word ‘Judgment’ as used in clause 15 of Letters Patent.

(1) It is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding;

(2) If, irrespective of the form of the suit or proceeding, the order impugned puts an end to the suit or proceeding, it doubtless amounts to a judgment;

(3) Similarly, the effect of the order if not complied with, is to terminate the proceedings, the said order would amount to a judgment;

(4) Any order in an independent proceeding which is ancillary to the suit (not being a step towards judgment) but is designed to render the judgment effective can also be termed as judgment;

(5) An order may be a judgment even if it does not affect the merits of the suit or proceedings or does not determine any rights in question raised in the suit or proceedings.

(6) An adjudication based on a refusal to exercise discretion the effect to which is to dispose of the suit, so far as that particular adjudication is concerned, would certainly amount to a judgment within the meaning of the Letters Patent.

36. In Shah Babulal Khimji ((1981) 4 SCC 8 : AIR 1986 SC 1786), the Hon'ble Supreme Court observed that while determining as to whether the order is appealable or not, the following considerations must prevail with the Court:—

(1) That the trial Judge being a senior Court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate Court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The Courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex-facie legally erroneous or causes grave and substantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.

37. In view of the settled legal proposition, the law on the subject can be summarized as under:—

(1) While passing the interim order, the Court must bear in mind the provisions of Order 39 of the C.P.C while granting the interim relief.

(2) Interim relief should not be granted merely by asking that there must be sufficient ground for granting such relief.

(3) Interim relief which amounts to final relief which could have been granted at the time of final determination of the case should not be granted.

(4) In exceptional circumstances where the fact situation requires the Court to pass an interim relief amounts to final relief, the Court must record the reasons so that its correctness may be examined by the Party/Revisional Court.

(5) Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules is not maintainable against every interim order, but where the Court has granted interim relief which amounts to final relief or where the order passed has trappings of the judgment, the appeal is maintainable.

38. The instant case requires to be examined in the light of the settled legal proposition.

39. The order impugned does not grant the final relief as the relief prayed for in the transfer application is for transferring the Matrimonial Case from Family Court, Allahabad to some other Family Court; nor any of the issue involved therein has been determined by the learned single Judge. The matrimonial case is based on cruelty and desertion. There is nothing on the record to show that any of the issues involved therein has been dealt with by the learned single Judge nor there was any occasion to touch the same at this stage. The order does not have the trappings of a judgment, because it does not adversely affects the right of either of the party. Staying the further proceedings till the disposal of the transfer application may cause some inconvenience to the party or may cause delay in disposal of the matrimonial case and may also not be in consonance with the orders passed by this Court to decide the Matrimonial Case expeditiously, but nothing is determined finally by the impugned order.

40. The case is squarely covered by the judgment of the Hon'ble Apex Court in Smt. Asurmati Debi, (AIR 1953 SC 198) (supra). We are of the considered opinion that the order impugned is not a judgment within the meaning of chapter VIII Rule 5 of the Rules and the appeal is not maintainable, it is, accordingly dismissed.

41. Before parting with the case, it may be necessary to point out that as the Matrimonial Case is pending since 1999, and several rounds of litigations had taken place before this Court also and direction had been issued from time and again to conclude the trial of the Matrimonial case pending before the learned Family Court.

42. Allahabad, we request the learned single Judge to dispose of finally the Transfer Application expeditiously.

43. Appeal dismissed.