Full Judgment Text
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PETITIONER:
RESHAM SINGH PYARA SINGH
Vs.
RESPONDENT:
ABDUL SATTAR
DATE OF JUDGMENT20/11/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1996 SCC (1) 49 JT 1995 (8) 559
1995 SCALE (6)672
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
These SLPs arise from the order dated 13.10.1995 of the
Division Bench of the Bombay High Court in L.P.A. Stamp
No.26774/95 and the order dated 13.9.95 in Appeal from Order
No.826/94.
The petitioner claims to have entered into an agreement
on June 21, 1973 to purchase certain lands from A.H. Wadia
Charity Trust. In 1975, when one Mohd. Amin and others
attempted to construct a boundary wall in the said land, he
claimed to have filed Suit No.298 of 1975 in the Civil
Court, Bombay and had an injunction against them restraining
from interfering with his possession and construction of the
boundary wall. When the petitioner had attempted to repair
the existing road on the land and open drainage, the
respondent filed Suit No.493/90 in the City Civil Court,
Bombay for injunction. The respondent claimed to be in
possession of the land admeasuring 1947 sq. mts. On its
basis, the petitioner claimed that they were attempting to
trespass into his land. Consequently, the appellant filed
Suit No.3670/94 on June 16, 1994 and also sought ad interim
injunction to restrain the respondent from committing
trespassing into his land. Initially, interim injunction was
granted on June 28, 1994. When the appeal was filed against
that order, the learned single Judge of the High Court
directed the Commissioner to demarcate the lands in
exclusive possession and enjoyment of the petitioner within
the compound wall by order dated September 13, 1995. Against
that order, the petitioner filed Letters Patent Appeal
contending that the order of the learned single Judge
amounts to granting temporary mandatory injunction to break
the compound wall and removing article etc. By the impugned
order dated 13, 1995, the Division Bench rejected the same
on the ground that LPA would not lie against the order of
the learned single Judge. Thus these SLPs.
It is contended for the petitioner that as per the law
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laid down by this Court in Shah Babulal Khimji vs. Jayaben
(AIR 1981 SC 1787), L.P.A. would lie to the Division Bench
against the interlocutory order of the single Judge and,
therefore, the view of the High Court is not correct in law.
We find no force in the contention.
Order 43, Rule 1, CPC provides an appeal from the
orders passed under Order 39 Rule 1 etc., as stated in sub-
rule (r), which provides as under:
"(r) an order under Rule 1, Rule 2,
Rule 2A, Rule 4 or Rule 10 of Order XXXIX."
Section 104 CPC provides for an appeal from the orders
provided in Order 43 save as otherwise expressly provided in
the body of this Code or by any law for the time being in
force and from no other orders. Sub-section (2) envisages
that "no appeal shall lie from any order passed in appeal
under this Section".
It would, therefore, be clear that when an appeal was
filed against the order of the City Civil Court, Bombay to
the learned single Judge under Order 43, Rule 1(r) as
provided in sub-section (1) of Section 104 by operation of
sub-section (2) of Section 104, no further appeal shall lie
from any order passed in appeal under this Section. In
Khimji’s case (supra) the suit was filed on the original
side of the High Court and the learned single Judge on the
original side passed an interlocutory order. Against the
orders of the learned single Judge, though it was an
interlocutory order, since the appeal would lie to the
Division Bench under the Letters Patent, this Court held
that against the interlocutory orders passed by the single
Judge, Letters Patent Appeal would be maintainable. That
ratio, therefore, is clearly inapplicable to the facts in
this case.
The SLPs are accordingly dismissed.