{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.128 OF 2009 IN WRIT PETITION NO.7193 OF 2008 Sarvodaya Bahuuddeshiya Shikshan Prasarak Sanstha, Fekri & others APPELLANTS VERSUS Sow Archana Baban Yawalkar and others RESPONDENTS ....... Mr.S.R.Barlinge, Advocate for appellants Mr.A.S.Shelke, Advocate for respondent No.1 Mr.N.N.Jadhav, AGP for respondents No.2 and 3 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 22nd September 2009 PER COURT: 1. This Letters Patent Appeal, under Clause 15 of the Letters Patent, takes exception to an order passed by the learned Single Judge of this Court dated 10.12.2008 in writ petition No.7193/2008 and an order passed by the learned Single Judge on 17.04.2009 in continuation of the earlier order so also order dated 16.06.2009 passed by the learned Single Judge of this Court in same writ petition as continuance of the earlier two orders. 2. Such of the facts, as are necessary for decision of this Letters Patent Appeal, may briefly be stated thus- {2} Respondent No.1 herein has filed writ petition No.7193/2008 challenging the order passed by the School Tribunal dismissing the appeal filed by her. Learned Single Judge of this Court, by order dated 10.12.2008, issued Rule in the writ petition and also issued rule on interim relief, making it returnable on 06.03.2009 and granted an ad interim relief in terms of prayer clause “E” till 10.03.2009. Thereafter, when the petition was listed before the learned Single Judge, pursuant to the rule on interim relief which was issued by order dated 10.12.2008, the learned Single Judge adjourned hearing of the petition by two weeks, to enable the appellants herein to file affidavit in reply. The learned Single Judge had made it clear that if the affidavit in reply was not filed within two weeks i.e. prior to the next date, the Court would proceed to hear the petition on the point of interim relief. Since the ad interim relief was granted on 10.12.2008, the learned Single Judge, by the aforesaid order directed continuance of the said ad interim relief. It appears that thereafter, the appellants herein filed affidavit in reply. When the petition was listed before the learned Single Judge for confirmation of the ad interim relief granted earlier, the learned Single Judge, by order dated 19.06.2009, observed that since the appellants herein had not complied with the order of the learned Single Judge dated 10.12.2008, the matter came to be adjourned by way of two weeks, to enable the present appellants to comply with the aforesaid order before the matter was taken up for hearing on the question of confirmation of the interim relief. 3. Mr.Barlinge, learned counsel for the appellants, has placed reliance on the judgment of the Division Bench of this Court in “Shrawan Sadhuji Gorle & etc. V/s Vasantrao Santoshrao Jagtap” {3} 2006 (6) AIR Bom R 725. Particularly, on the observations of the Division Bench at para 21. The Division Bench at para 21 of the aforesaid judgment, after referring to the judgment of the Supreme Court, quoted the following passage from the said judgment, which reads thus - “Interim orders / interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories:- (i) Orders which finally decide a question or issue in controversy in the main case. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject matter of the case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties.” On the strength of the aforesaid judgment it is contended before us by Mr.Barlinge, learned counsel for the appellants, that initially an ad interim relief came to be granted on 10.12.2008, thereafter, by an order, dated 17.04.2009, the learned Single Judge granted time of two weeks for filing affidavit in reply and ultimately by order dated 19.06.2009, the learned Single Judge granted two weeks’ time for complying with the aforesaid order. It is, therefore, urged before us that the order dated 10.12.2008 has attained finality and as such the present Letters Patent Appeal is maintainable. 4. Mr.A.S.Shelke, learned counsel for respondent No.1, on the {4} other hand, has contended before us that the order passed by the learned Single Judge on 10.12.2008 is still an ad interim relief, as rule on stay had been issued and the rule on stay has not been decided. It is urged before us that the appellants have in fact filed the Letters Patent Appeal against the order dated 10.12.2008 and the Letters Patent Appeal, therefore, is barred by limitation as the subsequent two orders do not confirm the earlier order. It is also urged before us that since no finality is attached to the order dated 10.12.2008, the present Letters Patent Appeal is not maintainable. 5. When this Appeal had been listed for admission, the Division Bench of this Court, on 28.07.2009 had granted ad interim stay to the order of reinstatement of respondent No.1. According to us, without entering into the question in respect of maintainability of the Letters Patent Appeal or the question as to whether the Letters Patent Appeal is required to be dismissed on the ground of limitation, the following order would sub serve the interest of justice. 6. It is, no doubt, true that by an order dated 10.12.2008, the learned Single Judge, while issuing Rule also issued Rule on interim relief and granted ad interim relief in terms of prayer clause “E” to the petition. When this matter was listed before the learned Single Judge, the learned Single Judge found that the appellants herein had not filed affidavit in reply and, therefore, granted two weeks as a last chance to the present appellants for filing affidavit in reply. The learned Single Judge, in so many words, made it clear that if the affidavit in reply, on behalf of the present appellants was not filed prior to the date of listing of the petition, the Court would proceed to hear the question of interim {5} relief, since the ad interim relief granted vide order dated 10.12.2008 was restricted for a particular period, the learned Single Judge directed its continuance until further orders. By order dated 17.04.2009, the learned Single Judge had not confirmed the order of ad interim relief granted vide order dated 10.12.2008. All that the learned Single Judge did is that he directed the continuance of the ad interim relief subject to its confirmation on the present appellants’ filing affidavit in reply. It appears that the appellants have filed affidavit in reply and accordingly the petition came to be listed before the learned Single Judge on 19.06.2009. The learned Single Judge found that the ad interim relief granted on 10.12.2008 had not been complied with and, therefore, the learned Single Judge declined to hear the petition in respect of rule on interim relief, which had been issued. Learned Single Judge granted last chance to the appellants herein for complying with the said order dated 10.12.2008. The appellants, instead of complying with the order dated 10.12.2008, have filed the present Letters Patent Appeal and by our order dated 28th July 2009, the order directing reinstatement of respondent No.1 has been stayed by us. 7. Unquestionably, the notice i.e. Rule on interim relief has not been decided and it is pending. The learned Single Judge has directed the appellants to comply with the earlier order dated 10.12.2008 and after complying the aforesaid order, the learned Single Judge would be hearing the Rule on interim relief. The interim relief, which has been granted, is still at the ad interim stage and is yet to be confirmed. In the light of that fact, therefore, we are not inclined to hear this Letters Patent Appeal, as according to us, the appellants have an adequate opportunity of demonstrating before the learned Single Judge that the ad interim {6} relief ought not to be granted in the peculiar facts and circumstances. However, since there is ad interim stay to the order of reinstatement, we grant two weeks’ time to the appellants herein for complying with the aforesaid order dated 10.12.2008 and thereafter to move the learned Single Judge in respect of question of confirmation or otherwise of the ad interim relief. 8. The Letters Patent Appeal accordingly fails and dismissed with the aforesaid liberty to the appellants. No costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/lpa128-09 {7} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.7103 OF 2009 IN LETTERS PATENT APPEAL NO.128 OF 2009 IN WRIT PETITION NO.7193 OF 2008 Sarvodaya Bahuuddeshiya Shikshan Prasarak Sanstha, Fekri & others APPELLANTS VERSUS Sow Archana Baban Yawalkar and others RESPONDENTS ....... Mr.S.R.Barlinge, Advocate for appellants Mr.A.S.Shelke, Advocate for respondent No.1 Mr.N.N.Jadhav, AGP for respondents No.2 and 3 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 22nd September 2009 PER COURT: In the light of dismissal of the Letters Patent Appeal, this civil application does not survive and hence accordingly dismissed. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/lpa128-09