1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR LETTERS PATENT APPEAL NO. 42 OF 2009 (Bholeshankar Awas Gruha Nirman Sahakari Sanstha Maryadit vs. Omprakash Dwarkaprasad Malviya & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : S.A. BOBDE & F.M. REIS, JJ. APRIL 17, 2009. Heard Shri Srivastava, learned counsel for the appellant and Shri Kilor, learned counsel for respondent No.1. The appellant has filed this appeal against the judgment and order of the learned Single Judge of this Court dated 26.11.2008, rejecting writ petition filed by the Society against an order of trial Court by which the trial Court has rejected the application of the appellant under Order 39 Rule 2A of the Code of Civil Procedure. A preliminary objection has been raised by the learned counsel for the respondent to the maintainability of this appeal under Clause 15 of Letters Patent of this Court. The appellant filed a suit for declaration and injunction in respect of suit land restraining the respondent from disturbing their peaceful possession over the suit property. The 2 trial Court granted an order of status quo. The appellants claimed that the respondent had breached the order of status quo and applied for initiating action under Order 32 Rule 2A of CPC. The trial Court considered the application and dismissed it after hearing arguments of the parties. Against that order, the appellants filed a writ petition before this Court which has been dismissed by the learned Single Judge by judgment dated 26.11.2008. The appellants have preferred this appeal against that judgment. Shri Kilor, learned counsel for respondent No.1. as stated above, has raised a preliminary objection about the tenability of the appeal on the ground that the judgment and order of the learned Single Judge is not a judgment within the meaning of clause 15 of Letters Patent of this Court. The learned counsel has mainly relied on the judgment of the Division Bench of this Court in Bombay Diocesan Trust Association Pvt. Ltd. vs. Pastorate Committee of the Saint Andrews Church, reported at 2008 (5) Mh. L.J. 661, where the Division Bench considered the tenability of an appeal against an order of learned Single Judge discharging a party from proceedings under the Contempt of Courts Act and held that such a judgment is not a judgment 3 within the meaning of Clause 15 of the Letters Patent. After considering several decisions of the Supreme Court and this Court and in particular the judgment of the Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kania & Anr., reported at (1981) 4 SCC 8, the Division Bench came to the conclusion that an order discharging the party under proceedings under Contempt of Courts Act, does not determine any right or interest of the parties to the lis much less finally and therefore such an order is not judgment within the meaning of Clause 15 of Letters Patent and as such not appealable. The learned counsel for the appellants, however, submitted that this judgment of the Division Bench would not apply to an order discharging a party from action under Order 39 Rule 2A of the Civil Procedure Code because such an order is an order which finally decides a collateral issue or question which is not the subject matter of the main case as referred to in para 21 of the judgment of the Division Bench. The Division Bench has noted which interlocutory orders are passed during the pendency of a case are judgments and which are not. We are, however, of the view that an order of a trial Court refusing to take action against 4 the parties under Order 39 Rule 2A of CPC is not an order which finally decides any collateral issue or question. Such an order is substantially similar to an order refusing to take action for Contempt. The only thing such an order decides is that the party to such proceeding has not committed any breach of an order of the Court. From its very nature, such an order does not after the rights of parties which are determined finally by the Court in the suit itself. Moreover, the Division Bench has in the above case clearly observed, albeit in a case under a Contempt of Court Act, when the Court discharges a party for Contempt of Court, no right or interest to the party to the lis are determined by the Court much less finally. While there may be some difference between the nature of proceedings under Contempt of Court Act and Order 39 Rule 2A of the CPC, we see no essential difference with respect to the rights of the parties. In both cases, it cannot be said that the rights of the parties have been determined by the Court much less finally. The ratio is relate to an order refusing to take action under contempts with appropriately apply to an order rejecting an application under Order 39, Rule 2A of C.P.C. The learned counsel for the appellants further submitted that the order of the trial Court 5 refusing to take action under Order 39, Rule 2A of Code of Civil Procedure which has been upheld by the learned Single Judge affects the appellants right to enjoy the property and therefore the order of the learned Single Judge upholding the order of the trial Court should be treated as a judgment. We are unable to accept this contention. The order might be affecting the appellants right to property temporarily. However, as a fact it has been found that the respondents have not breached the order of the Court and in any manner wrongly affected the appellants property. In any case, as observed earlier, there is no final determination of the rights of either of the parties by the order of trial Court and consequential refusal by the learned Single Judge to interfere in such a finding. Hence, we are of the view that the judgment and order rejecting writ petition and refusing to interfere in an order of the trial Court refusing to take action under Order 39, Rule 2A of Code of Civil Procedure is not a judgment within the meaning of Clause 15 of Letters Patent. Therefore, the present LPA is dismissed as not tenable. JUDGE JUDGE *GS.