IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. <<>> Smt. Hasina & Ors. Vs. Ram Deen & Ors. D.B. CIVIL SPECIAL APPEAL (W) NO. 502/2010. Date of Order :: 6th August 2010. PRESENT HON’BLE MR. JUSTICE A.M. SAPRE HON’BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.P. Sharma, for the appellants. …… BY THE COURT: By way of this special appeal, the petitioners-appellants seek to assail the order dated 21.07.2010 passed by the learned Single Judge in CWP No. 6624/2010 while dismissing the writ petition in limine. The writ petition aforesaid was preferred by the petitioners-appellants against the order dated 14.07.2010 passed by the Additional District Judge (Fast Track), Parbatsar, Nagaur rejecting the applications moved by them under Order I Rule 10(2) of the Code of Civil Procedure seeking impleadment as defendants in the civil suit and as non-applicants in the application for temporary injunction. The suit aforesaid has been filed by the private respondents against the official respondents seeking the reliefs of declaration and injunction in relation to the mining area in 1 question, bearing No.217/2 and situated at Makrana. The petitioners claimed that they were in possession of the area in question that was lying adjacent to their marble mining area bearing No.216; and that they had applied for the same for extension of their existing mining area. The learned Trial Court proceeded to reject the applications so moved by the petitioners with the observations that in the suit filed by the plaintiffs seeking declaration and injunction against the defendants in the Mining Department of the Government of Rajasthan while claiming Bapi rights over the mining area in question, the petitioners were neither necessary nor proper parties; and that the claim made by the plaintiffs could very well be defended by the State Authorities, the defendants in the suit. The learned Single Judge found no case of jurisdictional error in the order passed by the learned Trial Court so as to warrant interference by the Court in its supervisory jurisdiction under Article 227 of the Constitution of India. The petitioners-applicants have preferred this special appeal seeking to challenge the order so passed by the learned Single Judge. Noticing the subject-matter, at the outset we posed the question to the learned counsel for the appellants on the maintainability of this appeal against the order passed by the learned Single Judge in the writ petition arising out of an interlocutory order passed by the Trial Court in a civil suit, particularly in view of the decision of a Division Bench of this Court in the case of Sukh Dev Vs. Prakash Chandra : SAW 2 No. 844/2009, decided on 16.04.2010 holding such an appeal not maintainable. The learned counsel for the appellants responded with the submissions that there had been yet other view of the matter as expressed by another Division Bench of this Court in the case of Kartar Singh Vs. Board of Revenue & Ors.: 2010 (2) CDR 1153. The learned counsel further submitted that when there is likelihood of a collusive decree being obtained in the suit that might have adverse effect on the rights of the petitioners-appellants, for the purpose of complete justice between the parties and for the purpose of avoiding multiplicity of proceedings, the petitioners ought to have been ordered to be impleaded as parties in the proceedings. The learned counsel also endeavoured to suggest that several of the contentions sought to be urged by the petitioners-appellants were not considered by the learned Single Judge and though pointed out that an application for review of the order has been filed before the learned Single Judge but then, submitted that the scope of review remains limited and hence, the instant appeal deserves to be considered on merits. During the course of submissions, the learned counsel also referred to an order passed by the Hon’ble Supreme Court in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. : (2009) 5 SCC 616 to point out that the ratio in the earlier decision in Surya Dev Rai Vs. Ram Chander Rai : (2003) 6 SCC 675 has been doubted 3 and the matter stands referred to a Larger Bench of the Hon’ble Supreme Court. After having heard the learned counsel for the appellants at length and having given our thoughtful consideration to the submissions made, we find absolutely no reason to entertain this appeal contrary to the decision of a coordinate Bench in Sukh Dev’s case (supra) wherein, after considering similar nature intra-court appeals filed against the orders passed by the writ Courts, essentially in the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, the Division Bench held the appeals not maintainable. So far the present case is concerned, it does not appear necessary to dilate on any other aspect including the decision in Kartar Singh’s case (supra); and suffice is to notice for the present purpose that even in Kartar Singh’s case, the Division Bench of this Court proceeded to draw a line of distinction so far Sukh Dev’s case was concerned with the observations that it were the interlocutory orders of the Trial Court under challenge therein. In our opinion, so far the order which is the subject-matter of this appeal is concerned, it stands squarely covered by the ratio of Sukh Dev’s case (supra) and this appeal cannot be held maintainable. We are unable to find any observation in Radhey Shyam’s case (supra) that would enure to the benefit of the appellants so far the question of maintainability of this appeal is concerned. Therein, the Hon’ble Supreme Court has pointed out its agreement with the distinction, as pointed out in 4 Surya Dev Rai’s case (supra), in exercise of the powers between Articles 226 and 227 of the Constitution of India; but has doubted the correctness of the legal proposition in Surya Dev Rai’s case that judicial orders passed by the Civil Court could be examined and then corrected/reversed by the writ Court under Article 226 in exercise of its powers of writ of certiorari. As is apparent from the said order in Radhey Shyam’s case (supra), the matter remains referred to the Larger Bench of the Hon’ble Supreme Court and, obviously, this Court would not make any observation in regard to the principle of law to be dealt with by the Hon’ble Supreme Court in the said matter. For the present purpose, suffice is to say that even on the basis of the said order in Radhey Shyam’s case (supra), no case is made out on the maintainability of this intra-court appeal. Once we have come to the conclusion that this intra- court appeal is not maintainable, we are clearly of the view that dilatation on any other aspect relating to the merits of the case is neither requisite nor would be proper. We, therefore, do not propose to deal with the merits of the case at all. As a result of the aforesaid, this appeal stands dismissed as not maintainable. (DINESH MAHESHWARI), J. (A.M. SAPRE), J. Mohan/ 5