ARVIND KUMAR JAIN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) ON a preliminary objection advanced by the learned counsel for the respondents that the writ appeal preferred against the order dated 12-1-2007 passed by the learned single Judge in W. P. No. 17241/2006 is not maintainable being hit by the proviso to sub-section (1) to Section 2 of the m. P. Uchcha Nyaylaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, (forbrevity 'the Act') a Division Bench hearing the appeal noticed that there are two sets of decisions pertaining to maintainability of an appeal under the Act in respect of interlocutory orders : (i)one holding that the appeals are maintainable under certain circumstances and (ii) the other holding that no writ appeal would lie against any interlocutory order as the bar created by the proviso appended to Section 2 of the Act would come into play. Because of this situation the Division Bench has referred the following question for adjudication by a larger Bench: "whether the proviso of Section 2 (1) of the Madhya Pradesh Uchcha Nyaylaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 absolutely bars an appeal to the Division Bench or such an order can be assailed in an appeal regard being had to the nature, tenor, effect and impact of the order passed by the learned single Judge ?" in the aforesaid factual matrix, the matter has been placed before us.

(2.) IN W. A. No. 69/2007 [nav Nirman (Milan) Deria v. State of M. P. (decided on 15-1-2007)a Division Bench has expressed the opinion as under : "a preliminary objection has been raised by the respodnents to the maintainability of the appeal saying that under the Proviso to sub-section (1) of Section 2 of the Madhya pradesh Uchcha Nyaylaya (Khand nyaypeeth Ko Appeal) Adhiniyam, 2005, no appeal shall lie against an interlocutory order passed by learned single Judge. In Shah babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1736 the Supreme Court while considering the maintainability of appeals against judgment and interlocutory orders, considering a series of decisions of different courts rendered on the subject, held that every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matter of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. After laying down the aforesaid law, the Supreme Court held that in that case, the order of the Trial judge was one refusing to appoint a receiver or to grant an ad interim injunction and such an order undoubtedly was a judgment within the meaning of the Letters Patent. Applying the aforesaid law to the facts of the present case, we hold that the refusal of an interim order for staying the order of removal under section 41 -A of the Act passed against the appellant would cause serious injustice to the appellant, inasmuch as he would stand removed from the office of the President of the Nagar Panchayat. We are, thus, of the view that the impugned order passed by the learned single Judge refusing to grant ad-interim prayer was not an interlocutory order and could be challenged in a writ appeal and the objection to the maintainability of appeal has no merit and is rejected. "

(3.) IN W. A. No. 671/2007 [shri Tejpal singh v. Central Bank of India (decided on 25-4-2007)another Division Bench referred to certain decisions of the Apex Court and expressed the opinion as under : "in our considered opinion, the learned single Judge has really passed an order which materially affects the final decision in the main case and has vital impact on the case. Hence, we hold that the appeal against the said order is maintainable. "