2017 (1) TMI 1827 - HC - Indian Laws

Maintainability of appeal against an interlocutory order - Whether the proviso to Section 2(1) of the Act, 2006 is an absolute bar to entertain an appeal against an interlocutory order without considering the scope of the order and without considering whether the interlocutory order has decided the rights of the parties and has an element of finality attached to it? - HELD THAT - Even an interlocutory order may be final in certain respects. In Madhu Limaye 1977 (10) TMI 111 - SUPREME COURT , the Apex Court held that it is neither advisable nor possible to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final. However, examples are given of one or two orders which may be interim in nature and do not bring the entire proceedings to a closure but decide matters of moment and have an element of finality attached to them. A writ Court, by way of interim relief may grant admission to the petitioner in a medical college. This order virtually amounts to allowing the writ petition and could be termed as an order having an element of finality attached to it. On the other hand, the order refusing to grant interim relief would be an interlocutory order - Another example would be where an order of demolition is challenged in a writ petition in which demolition is to take place in a day or two. If the writ Court does not grant an order of stay, the said petition would virtually become infructuous. This order can also be termed to have an element of finality attached to it. The proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 bars appeals against those interim orders which are totally interlocutory in nature, do not decide matters of moment and do not have an element of finality attached to them. Conversely, if the order vitally affects rights of the parties having bearing on the final adjudication of the case, then even though the order is interim, it cannot be termed as interlocutory order and an appeal would lie. An appeal would also lie against those orders which cannot be undone at the time of final hearing and which have an element of finality attached to them. The orders, effect of which cannot be undone at the time of final hearing, cannot be termed to be interlocutory orders and in such eventuality, an appeal would lie against such orders. Appeal disposed off.

Issues Involved:
- Whether the proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006, is an absolute bar to entertain an appeal against an interlocutory order.

Detailed Analysis:

Interpretation of Section 2(1) of the Act:
The main issue was whether the proviso to Section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006, bars appeals against all interlocutory orders. Section 2(1) provides a statutory right of appeal against any judgment or order passed by a Single Judge in exercise of original jurisdiction under Article 226 of the Constitution of India to a Division Bench. The proviso, however, states that no appeal shall lie against an interlocutory order or an order passed in exercise of supervisory jurisdiction under Article 227.

Arguments and Precedents:
The appellants relied on the judgment in Shah Babulal Khimji v. Jayaben D. Kania, where the Supreme Court held that certain interlocutory orders affecting vital rights could be considered judgments and thus appealable. The respondents, however, argued that the proviso clearly bars appeals against interlocutory orders, and judicial interpretation cannot confer a right of appeal where the statute explicitly denies it.

Interpretation of "Interlocutory Orders":
The court examined various precedents to interpret the term "interlocutory orders." It was noted that not all interim orders are interlocutory. Orders that decide matters of moment, have an element of finality, or affect vital and valuable rights of the parties are not considered interlocutory. The court referred to judgments like Amar Nath v. State of Haryana and Madhu Limaye v. State of Maharashtra, which provided guidelines on distinguishing between interlocutory and non-interlocutory orders.

Proviso Interpretation:
The court discussed the purpose of a proviso, which is to limit the generality of the main section. The proviso to Section 2(1) was interpreted to bar appeals against purely interlocutory orders. However, orders that vitally affect the rights of the parties and have an element of finality attached to them, even if interim, are not barred from appeal.

Conclusion:
The court concluded that the proviso to Section 2(1) bars appeals against interim orders that are purely interlocutory and do not decide matters of moment or have an element of finality. Conversely, if an interim order vitally affects the rights of the parties and has a bearing on the final adjudication, it cannot be termed interlocutory, and an appeal would lie. Orders that cannot be undone at the final hearing and have an element of finality are also not considered interlocutory and are appealable.

Separate Judgment:
One judge, while agreeing with the interpretation of the proviso, differed on the scope of the term "interlocutory orders," arguing that the Full Bench should not answer questions not specifically referred to it by the Division Bench.

Final Order:
In view of the majority judgment, it was held that the proviso to Section 2(1) bars appeals against purely interlocutory orders but allows appeals against orders that affect vital rights and have an element of finality.

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