Shri Rajpal Manchanda vs Sh. Braham Tej Singh and Others

Aruna Suresh, J.

RSA 75/2010 and CM APPL. 7006/2010 (stay)

Parties to the petition are litigating with each other. Respondent filed a suit for declaration and permanent injunction against the appellant. In the said case, Trial Court vide order dated 20.08.2009 allowed the application of the Respondent filed under Order 39 Rule 1 and 2 CPC and directed the appellant to remove lock from the gate situated on the back side of the suit premises in order to grant access to Respondent No.1 to the first floor of the property. This order was challenged by the appellant by filing an appeal being MCA No.26/2009. The said MCA was dismissed by the learned ADJ vide the impugned order dated 05.03.2010. This has resulted into filing of the second appeal.

Respondent has challenged the maintainability of the appeal alleging that no decree has been passed against the appellant vide impugned order and it being interlocutory order, no appeal lies.

Mr. Sunder Khatri learned counsel for the appellant has submitted that this Court has the power to grant him interim relief in this appeal and the appeal is maintainable as it has been filed against the order of the Appellate Court passed in MCA.

Section 100 CPC deals with the power of this Court to entertain a second appeal where substantial question of law is involved. Pre-requisite of Section 100 CPC is that there should be a decree against the appellant i.e. second appeal would lie only against the final judgment and decree of the first Appellate Court.

Admittedly, vide impugned order, the Appellate Court and the Revisional Court, as the case may be, only upheld the order of the Trial Court whereby an interim relief was granted to Respondent No.1. In no manner, the Courts below decided the rights of the parties on merits. Therefore, appellant cannot invoke provisions of Section 100 CPC seeking redressal of his grievances against the impugned order of the Courts below. It was for the appellant to challenge the impugned order in a proper forum. Reference is made to Krishnananda Vs. Kattu Siva Ashram and Others, .

Learned counsel for the appellant has submitted that RSA filed by Respondent No.1 has been entertained by the Court. Counsel for the Respondent has submitted that second appeal was filed when a suit for declaration was dismissed by the Trial Court and he also failed in the first appeal. The said RSA, therefore was filed against the decree and was maintainable. Present appeal cannot be entertained simply because another appeal filed by Respondent No.1 is pending adjudication between the parties relating to the same dispute.

Therefore, the appeal being not maintainable, it is accordingly dismissed. Appellant is at liberty to approach the appropriate forum for redressal of his grievance.