Hari Ram v. Vishnu Swaroop DATE OF ORDER & Ors.

HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE S.S. KOTHARI Mr. Alok Garg, for appellant Mr. Ajay Gupta, for respondent *** Matter comes up on the application No.19456 dt.23/04/2010 filed by the respondent No.1 with regard to maintainability of this appeal against the judgment of the learned Single Judge passed in SBCW No.5090/2007 dt.19/02/2008. Learned Counsel for the respondent has submitted that writ petition before learned Single Judge was filed challenging the order dt.14/05/2007 [Ann.5] passed by the learned trial Court during pendency of the appeal whereby the documents were held to be inadmissible by learned trial Court in evidence. The learned Single Judge vide judgment dt.19/02/2008 allowed the writ petition setting aside the impugned order with the direction to the learned Court “to consider both the documents in evidence”. Aggrieved by the aforesaid decision of the learned Single Judge dt.19/02/2008 allowing the writ petition, the respondent preferred the present appeal [intra court appeal]. Learned Counsel for respondent in this appeal SAW 1147/2008 [2] has raised a preliminary objection by way of the present application dt.23/04/2010 that in view of recent decision of Division Bench of this Court in the case of Sukh Dev Vs.

Prakash Chandra reported in 2010 (2) WLC (Raj.)-500 whereby it has been held that intra court appeal against the decision of the learned Single Judge passed in exercise of writ jurisdiction under Article 227 of the Constitution of India is not maintainable. This position is not disputed. In the facts & circumstances of the case and keeping in view the recent decision of the Division Bench of this Court in Sukh Dev Vs. Prakash Chandra [supra], we hold that the present appeal against the decision of the learned Single Judge dt.19/02/2008 allowing the writ petition is not maintainable. In the facts & circumstances, however, we leave it open for the appellant that in case he is dis-satisfied with the ultimate decision that may be given by the learned trial Court in the suit, the appellant would be at liberty to raise these grounds in the regular appeal that may be preferred against the judgment & decree passed by the learned trial Court.

Consequently, the application No.19456 dt.23/04/2010 filed by the respondent is allowed. The special appeal, accordingly, stands SAW 1147/2008 [3] dismissed as not maintainable and the stay application also stands dismissed. The interim stay order passed by this Court on 03/07/2008 and confirmed vide order dt.09/01/2009 stands vacated. The learned trial Court is now free to proceed in the matter, in accordance with law. The application No.19456, the SAW [Writ] No.1147/2008 and Stay Application No.1276/2008 stand disposed of. [S.S.KOTHARI], J. [DALIP SINGH],J. FRBOHRA1147SAW2008 14-07.doc