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TMI Blog2007 (7) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... dication by a Larger Bench: Whether the proviso of Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 absolutely bars an appeal to the Division Bench or such an order can be assailed in an appeal regard being had to the nature, tenor, effect and impact of the order passed by the learned Single Judge? 2. In the aforesaid factual matrix, the matter has been placed before us. 3. In W.A. No. 69/2007 [Nav Nirman (Milan) Deria v. State of M.P. (decided on 15-1-2007)] a Division Bench has expressed the opinion as under: A preliminary objection has been raised by the respondents to the maintainability of the appeal saying that under the Proviso to Sub-section (1) of Section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, no appeal shall lie against an interlocutory order passed by learned Single Judge. In Shah Babulal Khimji v. Jayaben D Kania and Anr. AIR 1981 SC 1736, the Supreme Court while considering the maintainability of appeals against judgment and interlocutory orders, considering a series of decisions of different Courts rendered on the subject, held that every interlocutory order cannot be regarde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, hereby dismissed. 6. In view of the cleavage of opinion, the question, as indicated before, was framed. 7. We have heard Mr. R.P. Agrawal, learned Senior Counsel alongwith Mr. Sanjay Agrawal for the appellants, Mr. Sanjay K. Agrawal for the respondent Nos. 1 and 2 and Mr. V.S. Shroti, learned Senior Counsel alongwith Mr. A.P. Shroti for the respondent No. 3. 8. Mr. R.P. Agrawal, learned Senior Counsel has raised the following submissions: (i) The main part of Section 2 of the Act incorporates two terms, namely, 'judgment' and 'order' and the conception of an order under Article 226 is of wide amplitude and does not always convey that it is an order passed finally but includes an order which has the trappings and characteristics of finality. (ii) True it is, the proviso to Section 2(1) has used the words 'interlocutory order', but the same cannot be read in absolute terms. The proviso in its basic essentiality carves out an exception which gives rise to the natural presumption that the provision would have been attracted but for the exclusion made in the proviso, however, it cannot be so interpreted in all circumstances. (iii) Though there is manifest ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in exercise of original jurisdiction.-- (1) An appeal shall, lie from a judgment or order passed by one Judge of the High Court in exercise of original jurisdiction under Article 226 of the Constitution of India, to a Division Bench comprising of two Judges of the same High Court: Provided that no such appeal shall lie against an interlocutory order or against an order passed in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. (2) An appeal under Sub-section (1) shall be filed within 45 days from the date of the order passed by a Single Judge: Provided that any appeal may be admitted after the prescribed period of 45 days, if the petitioner satisfies the Division Bench that he had sufficient cause for not preferring the appeal within such period. Explanation :-- The fact that the petitioner was misled by any order practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this sub-section. (3) An appeal under Sub-section (1) shall be filed, heard and decide in accordance with the procedure as may be prescribed by the High Court. 11. On a studied scrutiny of the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the main provision though it cannot be inconsistent with what is expressed in the main provision and if it is so, it would be ultra vires of the main provision and struck down. As a general rule in construing an enactment containing a proviso, it is proper to construe the provisions together without making either of them redundant or otiose. liven where the enacting part is clear, it is desirable to make an effort to give meaning to the proviso with a view to justify its necessity. 14. In the case of Director of Education (Secondary) and Anr. v. Pushpendra Kumar and Ors. [1998] 3 SCR 432, the Apex Court has ruled thus: 8...An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision.... 15. We have referred to the aforesaid decisions only to highlight that in the main part of Sub-section (1) the word 'order' has been used. Article 226(1) of the Constitution confers power on the High Court to issue 'orders' or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any one of them. In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th certain restrains and within some parameters. 19. In Roshan Deen v. Preeti Lal (2002) ILLJ 465 SC, Their Lordships have observed thus: ...Time and again this Court has reminded that the power conferred on the High Court under Articles 226 and 227 of the Constitution is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Court is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law. 20. Regard being had to the aforesaid fundamental concept of the term 'order' it has to be understood that the statute permits an order to be appealed against. The proviso stipulates that no appeal would lie against an interlocutory order. But an eloquent and pregnant one, when an interlocutory order has the semblance of final order or affect the rights of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon Clause 10 of the Letters Patent of Patna High Court Their Lordships referred to case of Shah Babulal Khimji (supra) and in the ultimate eventuate opined that to determine the question whether an interlocutory order passed by one Judge of the High Court falls within the meaning of judgment for purposes of Letters Patent, the test is whether the order is a final determination affecting the vital and valuable rights and obligations of the parties concerned and the same has to be ascertained on the facts of each case. Be it noted that in the said case the learned Single Judge had allowed the application under Section 17-B of the Industrial Disputes Act, 1947 and directed management to pay the workman full wages last drawn by them on the date of termination of their services. The Division Bench of the High Court had held that the Letters Patent Appeal was not maintainable. The Apex Court came to the conclusion that the appeal was maintainable and remitted the matter to the High Court for fresh adjudication on merits. 24. In Deoraj v. State of Maharashtra and Ors. AIR 2004 SC 1975, it was held that there may be few cases which would not call for the Court's leaning not in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litate 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. The term judgment occurring in Clause 15 of the Letters Patent will take into its fold not only the judgments as defined in Section 2(9), CPC and orders enumerated in Order 43 Rule 1, CPC, but also other orders which though may not finally and conclusively determine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, judgment for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not judgments for the purpose of filing appeals provided under the Letters Patent. 28. From the aforesaid enunciation of law there remains no scintilla of doubt that interlocutory orders on certain circumstances, could be appealed against under the Letters Patent. Despite t ..... 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