RANJIT KUMAR MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this application, a preliminary point has been raised by the opposite parties to the maintainability of the appeal from the order dated the 8th july 1969, passed by P. K. Banerjee J. , allowing an application for extension of the interim order granted previously in the Rule before his Lordship and the decision in (1) I. L. R. 44 Bom. p. 272 (Venechand v. Lakshmichand) has been cited in support of that contention. The question involved is not of course an easy one and there are numerous decisions dealing with it, namely, what is a 'judgment' within the meaning of clause 15 of the Letters Patent. In a recent case of this High Court, a division bench has discussed the State of law in (2) Md. Felumeah v. S. Mondal 64 CWN p. 861 and come to the conclusion that an order varying an interim injunction made in an application under art. 226 appealable. It is no less a final order because it was limited to a particular period, namely, the pendency of the matter before the court or until a decision was made on the merits of the proceeding before the Court. For our present purposes it is needless to enter into the wider question as to whether an order relating to an application for temporary injunction a suit is appealable or not. The question involved in an application under Art. 226 stands on a separate footing. The interim order which is usually asked for in an application under art. 226 is practically of the same nature as that which is asked for from the court finally in the Rule, the only difference being that the interim order would last only until the court is in a position to give its final verdict upon a consideration of the merits. Till that is done, the interim order decides the rights of the parties in the same manner as would the Rule absolute, subject to the limitation in respect of the period of operation. In the Division Bench decision cited before, it has been held that the temporary character of such an order does not affect its true legal position. As matters, stand, we are not in a position to differ from this view and we hold that this appeal is maintainable.

(2.) SO far as the interim order applied for by the appellant is concerned, prima facie, the period of licence under the Excise Act is one year. Whether an existing licensee should be considered for renewal or not is a matter for determination by the competent authority and not by us. But there is no reason why the procedure for settlement of the excise shop in question by license for a subsequent year should not be taken in time, inasmuch as that has got nothing to do with the litigation before us, which deals with a previous year. In fact, Banerjee, J. by his order in question has directed the authorities concerned to proceed for the settlement of the shop in accordance with law but with the reservation that no final order should be passed pending the hearing of the Rule. Whether this part of the order should be maintained or not can only be decided by us at the hearing of the appeal from the order. But at the present moment, we are anxious to see that the proceedings for a settlement for the next year (1969-70)should also not be rendered infructuous by protracted litigation. With this end in view, we direct the competent authorities to take steps according to law for settlement of the Excise shop in question for the year 1969-70 and to intimate the result thereof before granting the same, preferably within a period of two months from this date, to this court.

(3.) LET a copy of this order be made over to Mr. D. C. Mukherjee, appearing on behalf of opposite parties Nos. 1 and 2, for communication to the statutory (authorities) for licensing under the Act the application the above terms. is disposed of on there will be no order as to costs.