1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. LETTERS PATENT APPEAL NO.: 191 OF 2009 Satishchandra Ganeshanna Chaudhary Versus Sukanyadevi W/o Lekhraj Kaul and another *** Mr. Sunil V. Warad, Advocate for the Appellant. Mr. P. S. Pawar, Advocate for Respondent No.1. Smt. Manjusha Deshpande, Advocate for Respondent No. 2. *** ORAL ORDER [Per Deshmukh, J.] 1. We have heard learned counsel for parties. 2. Rule, made returnable forthwith and heard finally with consent of the parties. 3. The appellant before this Court is original Respondent No.2 in Writ Petition No.5103 of 2009. The Petitioner in Writ Petition No.5103 of 2009 challenges the order passed by the learned Civil Judge, Junior Division, below Exhibit-21 in Regular Civil Suit No.24 of 2009. In Writ Petition No.5103 of 2009 plaintiff in Regular Civil Suit No.24 of 2009 is petitioner. Plaintiff / Petitioner has filed this petition under article 227 of the Constitution as it 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. appears from the copy of the writ petition Annexure-D. Copy of the order passed by the learned Single Bench dated 29th August, 2009 in Writ Petition No.5103 of 2009 Annexure/J, page 43, is also on record. Learned Single Bench of this Court has issued Rule in the writ petition and interim relief in terms of prayer clause (C) is granted. This prayer clause (C) is reproduced herein below: "(C) Pending hearing and final disposal of this writ petition, the impugned order below Exh.21 dtd. 20.6.2009 in R.C.S. No.24 of 2009 passed by the IInd Joint Civil Judge, Senior Division, Aurangabad be stayed." 4. On behalf of the Appellant Advocate Mr. Ward submits that the order impugned in this appeal, is passed by the learned Single Bench of this Court under Article 226 read with Article 227 of the Constitution. According to learned Advocate Mr. Warad, the order passed by the trial Court is stayed by the learned Single Bench, however, hearing of the suit is not stayed. In other words, the suit is 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. permitted to go on in accordance with the provisions of law. His another submission is that, the order passed by the learned Single Bench is without reasons. In support of this submission, Mr. Warad, learned counsel, relied on a judgment of learned Division Bench of this Court in the matter of "Pipe Arts India Pvt. Ltd., Sanaswadi V/s Gangadhar Nathujai Golamare" reported in 2008 (6) Mh.L.J. 280. This order is passed by the learned Division Bench of this Court in a group of letters patent appeals. With the assistance of Mr. Warad, we have noticed the facts which are recorded by the learned Division Bench of this Court in para 3 of the judgment. . We have seen para 20, at the request of learned counsel Mr. Warad, for the Appellant. In para 20, learned Division Bench of this Court has recorded an opinion that, the reasoning of the Court, thus, can effectively be analysed or scrutinized by the Appellant Court. It is further observed that the reasons indicated by the Court could be accepted by the Appellate Court without 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. presuming what weighed with the court while coming to the impugned decision. We have given anxious consideration to the submission of learned counsel for the Appellant. We have also carefully considered the ratio laid down by the learned Division Bench of this Court. In our opinion this judgment is on the point of reasoning. Learned Division Bench of this Court was of the opinion [in the matter of Pipe Arts India (supra) ] that there was no reasoning recorded by the learned Single Bench while rejecting the prayer for interim relief. Facts, we have noticed. There, the Court has quashed and set aside the order of the learned Single Bench and remanded the matter. What was weighed with the Court was absence of reasoning while refusing interim relief. 5. Turning to the facts of the present case, it appears that the application for impleadment filed by the Appellant [third party] is allowed. It was an application under Order 1 Rule X (2) of the Code of Civil Procedure [the Code, for short]. Prayer in this application was for impleadment of 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the third party, as defendant in the suit. This application was at Exhibit-21 in R.C.S. No.24 of 2009. The learned trial Court, after hearing the parties, in para 7, has observed that, though the relief is not claimed against the applicant, but it is just and proper to add the applicant as the defendant in the suit. With this reasoning, said application was allowed and third party applicant was directed to be joined as defendant No.2 in the suit. This order was impugned before the learned Single Bench of this Court. As we have noticed that Rule was issued, considering the prayer for interim relief, learned Single Bench of this Court recorded submissions of the learned counsel appearing for the parties and granted Rule and interim relief. 6. It is true that, order passed by learned Single Bench, more specifically pertaining to interim relief, in terms of prayer clause (C) does not contain reasoning. However, jurisdiction invoked by the Appellant, is under clause 15 of the Letters Patent. It is apposite, at this stage, to refer 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. judgment of learned Division Bench of this Court in the matter of "Madhukar Venkatesh Ullal V/s Anita Hermy D'souza and others" reported in 2006 (2) Mh.L.J. 483. Counsel appearing for the Appellant has fairly made available copy of this judgment. We have seen the judgment in the matter of Madhukar (supra); issue pertaining to Order 1 Rule X (2) of the Code, was relevant. The learned Division Bench of this Court referred the judgment of Honourable Supreme Court and held that addition of party under Order 1 Rule X (2) of the Code is a matter of discretion and cannot be said to be a judgment. Intra-court appeal is held not to be maintainable. Facts in the case on hand are nearer to the facts in the matter of Madhukar (supra). In our view, suit is pending before the civil Court. Order passed by the learned Civil Judge, Junior Division, permitting impleadment of a third party as defendant, is challenged in the writ petition. From the tenor of the order, it is not possible for us to agree with the submission of learned 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. counsel appearing for the appellant, that it is an order under Article 226 of the Constitution of India. In our view, said order can be said to be an order under Article 227 of the Constitution. In this view of the matter, letter patent appeal, in the facts and circumstances of the present case, is not maintainable. 7. Intra Court appeal, therefore, stands dismissed. Rule discharged. No costs. 8. In view of final disposal of the letters patent appeal itself, civil application No.10085 of 2009 in L.P.A. No.191 of 2009 in W.P. No.5103 of 2009 stands rejected. [SHRIHARI P. DAVARE,J.] [S.B.DESHMUKH, J.] Dated:09/11/2009. ans/191 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. LETTERS PATENT APPEAL NO.: 191 OF 2009 Date of decision: 9th NOVEMBER, 2009. For approval and signature THE HONOURABLE SHRI JUSTICE S. B. DESHMUKH. THE HONOURABLE SHRI JUSTICE S. P. DAVARE. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE