RESHAM SINGH PYARA SINGH A v.

ABDUL SATTAR

NOVEMBER 20, 1995

[K. RAMASWAMY AND B.L. HANSARIA, JJ.] B

Code of Civil Procedure, I908:

S. I 04-0rder 39 Rule I-Order 43 Rule I-Appeal filed under order 43 Rule I-By operation of sub-section (2) of S.I04 no further appeal would lie.

The petitioner entered into an agreement on June 21, 1973 to purchase certain lands from a Charity Trust. In 1975, when 'A' and others attempted to construct a boundary wall in the said land, the petitioner filed a suit and had an injunction against 'them restraining from interfer- D ing with his possession and construction of the boundary wall. When the petitioner had attempted to repair the existing road on the land and open drainage, the respondent filed a suit for injunction, claiming to be in possession of the land admeasuring 1947 sq. mts. and that the petitioner claimed that they were attempting to trespass into his land. Consequently, the petitioner filed a suit and also sought ad interim injunction to restrain E the respondent from trespassing into his land. Initially, interim injunction was granted. On appeal a single Judge of the High Court directed the Commissioner to demarcate the lands in exclusive possession and enjoyment of the petitioner within the compound wall. Against that order, the petitioner filed Letters Patent Appeal, and the Division Bench rejected the F same on the ground that LPA would not lie against the order of the single Judge. Thus these SLPs.

It was contended for the petitioner that as per the law laid down by this Court in Shah Babula/ Khimji v. Jayaben, AIR (1981) SC 1787, L.P.A. G would lie to the Division Bench against the interlocutory order of the single Judge and, therefore, the view of the High Court is not correct in law.

Dismissing the SLPs, this Court

HELD : Section 104 CPC provides for an appeal from the orders H 483

A provided in Order 43 save as otherwise expressly provided in the body of this Code or by any law for the time being in force and from no other orders.

Sub-section (2) envisages that "no appeal shall lie from any order passed in appeal under this section". It would, therefore, be clear that when ari appeal was filed against the order of the City Civil Court, Bombay to the Single

Judge under Order 43, Rule l(r) as provided in sub-section (1) of section 104 by operation of sub-section (2) of section 104, no further appeal shall lie from any order passed in appeal under this section. [ 485-F-G)

Shah Babula/ Khimji v. Jayaben, AIR (1981) SC 1787, held inapplicable.

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) Nos. 25032-33 of 1995.

From the Judgment and Order dated 13.9.95 of the Bombay High Court in Appeal from Order No. 826/94 in S.C. Suit No. 3670 of 1994.

Sushil Kumar and R.P. Wadhwani for the Petitioner.

M.N. Shroff and Ms. Reema Bhandari for the Respondent.

The following Order of the Court was delivered :

These SLPs arise from the order dated 13.10.1995 of the Division Bench of the Bombay High Court in L.P.A. Stamp No. 26774/95 and the order dated 13.9.95 in Appeal from Order No.826/94.

The petitioner claims to have entered into an agreement on June 21, 1973 to purchase certain lands from A.H. Wadia Charity Trust. In 1975, when one Mohd. Amin and others attempted to construct a boundary wall in the said land; he claimed to have filed Suit No.298 of 1975 in the City Civil Court, Bombay and had an injunction against them restraining from interfering with his possession and construction of the boundary wall.

G When the petitioner had attempted to repair the existing road on the land and open drainage, the respondent filed Suit No. 493/90 in the City Civil Court, Bombay for injunction. The respondent claimed to be in possession of the land admeasuring 1947 sq. mts. On its basis, the petitioner claimed that they were attempting to trespass into his land. Consequently, the H appellant filed Suit No. 3670/94 on June 16, 1994 and also sought ad interim .

RESHAMSINGHPYARASINGHv. ABDULSATIAR 485

injunction to restrain the respondent from committing trespassing into his A land. Initially, interim injunction was granted on June 28, 1994. When the appeal was filed against that order, the learned single Judge of the High Court directed the Commissioner to demarcate the lands in exclusive possession and enjoyment of the petitioner within the compound wall by order dated September 13, 1995. Against that order, the petitioner filed Letters Patent Appeal contending that the order of the learned single Judge amounts to granting temporary mandatory injunction to break the compound wall and removing article etc. By the impugned order dated September 13, 1995, the Division Bench rejected the same on the ground

that LPA would not lie against the order of the learned single Judge. Thus these SLPs.

It is contended for the petitioner that as per the law laid down by

this Court in Shah Babula! Khimji v. Jayaben, AIR (1981 SC 1787(. L.P.A. would lie to the Division Bench against the interlocutory order of the single Judge and, therefore, the view of the High Court is not correct in law. We D find no force in the contention .

Order 43, Rule 1, CPC provides an appeal from the orders passed under Order 39 Rule 1 etc., as stated in sub-rule(r), which provides as under:

(r) an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order XXXIX."

Section 104 CPC provides for an appeal from the orders provided in Order 43 save as otherwise expressly provided in the body of this Code or F by any law for the time being in force and from no other orders. Sub-section (2) envisages that "no appeal shall lie from any order passed in appeal under this section".

It would, therefore, be clear that when an appeal was filed against the order of the City Civil Court, Bombay to the learned single Judge under G Order 43, Rule l(r) as provided in sub-section (1) of section 104 by operation of sub-section (2) of section 104, no further appeal shall lie from any order passed in appeal under this section. In Khimji's case (supra) the suit was filed on the original side of the High Court and the learned single Judge on the original side passed an interlocutory order. Against the H

A orders of the learned single Judge, though it was an interlocutory order, since the appeal would lie to the Division Bench under the Letters Patent, this Court held that against the interlocutory orders passed by the single Judge, Letters Patent Appeal would be maintainable. That ratio, therefore, is clearly inapplicable to the facts in this case.

The SLPs are accordingly dismissed.

G.N.

Petitions dismissed.

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