Khan, J. (Oral)::— This appeal is directed against impugned order dated 17.12.2004 passed in appellants' IA No. 8627/2004 in Suit No. 1471/2004 issuing notice to respondents (defendants) for 11.2.2005 and at the same time providing that any transfer of interest of the share of plaintiff Nos. 1 & 2 in property bearing No. Okhla factory S-80, Okhla Industrial Area, Phase-II, New Delhi would be subject to the outcome of the application.
2. Appellants had filed a suit for partition and rendition of accounts and permanent injunction of the ancestral/joint family properties and businesses. Along with this suit they also filed IA No. 8627/2004 for ex-parte interim directions that respondents (defendants) be restrained from alienating the property as detailed in Schedule-A attached thereto.
3. Appellants' grievance is that learned Trial Judge had only issued notice of the application to defendants and had not granted the ex-parte stay for the entire properties as enlisted in Schedule-A and by doing so had fallen in error by not appreciating their prima facie case and that the balance of convenience also lay in their favour. The learned Trial Judge had also overlooked that the matter was urgent and grant of interim protection would not brook any delay.
4. Notice of this appeal was issued to respondents who were restrained from selling, transferring, alienating or creating any third party interest in the property in question by Court order dated 27.12.2004
5. When the appeal came up for consideration today, learned senior counsel for respondents Mr. Tulsi challenged the very maintainability of this appeal. He submitted that the learned Trial Judge had only ordered notice in appellants' IA No. 8627/2004 which was not appealable either under the provisions of order 43 cpc or for that matter under Section 10 of Delhi High Court Act. He cited a Division Bench judgment of this Court in Nisha Raj & Another v. Pratap K. Kaula, 57 (1995) DLT 490 to support his contention.
6. This raises two interesting issues viz whether an order directing notice to the other side was appealable under any provisions of CPC or under Section 10 of Delhi High Court Act or even under the Letters Patent and whether a part ex-parte relief granted could be faulted with and an appeal taken against it.
7. The grant of a notice in an application for ad interim relief is covered by provisions of Order 39 Rule 3 CPC. This, however, is not appealable under Order 43 Rule 1(r) under which an appeal lies only against an order passed under Order 39 Rule 1, 2, 2A, 4 and Rule 10. Rule 3 is specifically excluded and since no appeal is provided against an order under this rule, no appeal would consequently lie against the grant of notice in an ancillary application seeking temporary injunction.
8. Such an appeal would also not lie under Section 10 of the Delhi High Court Act, 1966 which provides for an appeal to the Division Bench of the High Court against any judgment passed by the learned Single Judge while exercising original jurisdiction because an order issuing notice could not be said to be a judgment within the meaning of that word. The word “judgment” as is well established refers to adjudication which has the concept of finality attached to it and has also a direct and immediate adverse effect on the party. Every order, thus, is not a judgment, though there may be interlocutory orders which may have trappings and characteristics of a judgment and yet may not be covered by the provisions of Order 43 Rule (1)(a) to (w).
9. An appeal would surely lie against such orders, even though they are interim and interlocutory in nature and in respect of which right of appeal is not created under the CPC, because being a judgment these would be covered under Section 10 of the Delhi High Court Act. The same would hold good under Letters Patent also which again provides for the requirement of “judgment”.
10. Applying these well established tests to an order directing notice, it cannot be said that it involves any adjudication of the rights of the parties or puts an end to any proceedings or for that matter has any characteristics of any finality or any adverse effect or impact on the party. Such an order, as held in several judgments, is nothing more than a step forward towards adjudication and even if it was found to cause some little prejudice, it cannot be held to be a judgment either within the meaning of that word occurring in Section 10 of Delhi High Court Act or the Letters Patent.
11. There may, however, be very exceptional class of cases where an order issuing notice leaves a party no scope for retrieving the situation and for restitution. In such cases the impact of the order directing notice would be direct and immediate and it would naturally be a judgment. Such like exceptional and rare cases are conceivable. These could possibly include cases where a plaintiff was seeking a relief against deportation and only a notice was issued in his application for grant of interim relief. The grant of notice in such a case would result in denial of final relief to him and leave no chance of any kind of retrieval or restitution for the plaintiff. It would, therefore, be a judgment within the meaning of that word both under Section 10 of the Delhi High Court Act and also under the Letters Patent.
12. An appeal also cannot be taken against the grant of a part relief by the learned Trial Judge where the remaining part remains under consideration and examination for ascertaining the stand of the defendants. It also requires to be made clear at this stage that a plaintiff has no absolute right to the grant of an ex-parte interim relief nor is the Court obliged to grant it for asking and on the very first hearing. It is the prerogative of the Trial Judge/Court to feel satisfied on the requirements which govern the grant of a temporary injunction and to proceed in the matter accordingly. Where a notice was issued for this purpose and even a part relief granted but the application for ad-interim relief remained alive for further consideration or to afford the hearing to the other side, the question of maintaining an Appeal would not arise because entertaining any such Appeal would have the serious consequence of pre-empting the consideration by the learned Trial Judge/Court and by-passing his jurisdiction.
13. We accordingly hold that grant of notice is not a “judgment” within the meaning of Section 10 of Delhi High Court Act or under the Letters Patent. So no Appeal would lie against it nor under Order 43, barring those rarest of rare cases where it is established that issuance of notice had left the party no scope for retrieval and restitution and had resulted in denial of final relief to him.
14. This Appeal accordingly fails and is dismissed.