TMI Blog2017 (1) TMI 1827X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the Respondents, especially the learned Advocate General have contended that the language of the proviso is very clear. It is urged that the intention of the legislature is clear that it did not want to provide for appeals against interlocutory orders. It is further urged that when the statute creates a bar to an appeal against an interlocutory order by judicial interpretation, this Court cannot confer right of appeal. 5. In Shiv Shakti Coop. Housing v. Swaraj Developers {(2003) 6 SCC 659}, the Apex Court clearly held that the right of appeal is a statutory right. It has to be granted by statute and if no right is granted, then no appeal is maintainable. This view has been reiterated in Kamla Devi v. Kushal Kanwar another { (2006) 13 SCC 295}. 6. The main part of Section 2(1) of the Act, 2006 creates a statutory right of appeal against any judgment or order passed by a Single Judge of this Court in exercise of his original jurisdiction under Article 226 of the Constitution of India to a Division Bench. However, the proviso clearly provides that no appeal shall lie against an interlocutory order or an order passed in exercise of supervisory jurisdiction under Article 227 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment. 116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the Letters Patent. Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the Letters Patent. This is what was held by this Court in Shanti Kumar's case (supra), as discussed above. 8. The judgment in Shah Babulal Khimji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rative in nature, because various kinds/categories of orders may be passed in exercise of jurisdiction under Article 226 of the Constitution of India. (h) The facts in each case, the nature and the character of the order are to be scrutinised to appreciate the trappings of the same. 11. At the outset, we may state that we are fully in agreement with the Madhya Pradesh High Court with regard to the interpretation of the words order' and 'judgment'. The words 'order' and 'judgment' will have to be interpreted in the manner as laid down in Shah Babulal Khimji (supra). Therefore, any order which affects the rights of the parties would be an order or a judgment. However, we have some difference of opinion with the Madhya Pradesh High Court insofar as the scope and interpretation of the proviso prohibiting appeals against interlocutory orders is concerned. 12. The Apex Court, in Commissioner of Income Tax, Mysore v. The Indo Mercantile Bank Ltd. { AIR 1959 SC 713}, laid down the guidelines as to how to understand a proviso and held as follows: Ordinarily the effect of an excepting or a qualifying proviso is to carve something out of the preceding enactment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eption and thereby nullify the main provision by taking away completely the right conferred by the main provision.... 15. The purpose of a proviso is to limit the generality of the main portion of the section. True it is that the proviso to a section cannot be used to import into the enacted part something which is not there but when the enacting part gives certain rights then the proviso can be used to put some limitation(s) on those rights. 16. It is contended by learned Advocate General on behalf of the State that Shah Babulal Khimji (supra) may not be strictly applicable to the facts of the present case. According to him, the Letters Patent of the Bombay High Court did not contain any clause prohibiting the filing of the appeals against any interlocutory orders. It is submitted that though the word 'orders' and 'judgment' may have a very wide amplitude, when the language of the Act is clear and the proviso clearly lays down that no appeal lies against an interlocutory order, no appeal can lie against an interlocutory order. 17. In Shyam Sunder Others v. Ram Kumar Another (2001) 8 SCC 24} the Apex Court explained how to interpret the provisions of an enactment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for deciding the particular case. This principle is too well settled and reference to few decisions of this Court would suffice. [See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, Palghat and Anr. (AIR 1990 SC 1747), Union of India and Anr. v. Deoki Nandan Aggarwal (AIR 1992 SC 96), Institute of Chartered Accountants of India v. Price Waterhouse and Anr. (1997 (6) SCC 312) and Harbhajan Singh v. Press Council of India and Ors. (JT 2002 (3) SC 21)] 19. As already held by us if the language of a statute is clear and unambiguous, the Court cannot interpret the language in such a fashion that it defeats the purpose of the legislature. As far as the language of Section 2 (1) of the High Court of Chhattisgarh (Appeal to Division Bench) 2006, read with the proviso is concerned, it is more than obvious that the intention of the legislature was not to grant right of appeal against interlocutory orders. Therefore, we are of the view that the proviso bars appeals against interlocutory orders. 20. However, the matter cannot end here. Though, this matter has not been specifically referred, we are of the view that the Full Bench must also answer the question as to wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. 22. In Madhu Limaye v. The State of Maharashtra {(1977) 4 SCC 551} the view taken in Amar Nath (supra) with regard to interpretation of the word 'interlocutory order' was reiterated in the following te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is a pure point of law and is decided one way or the other, then the order deciding such a point may not be interlocutory, albeit-may not be final either. Surely, it will be a case decided, as pointed out by this Court in some decisions, within the meaning of section 115 of the Code of Civil Procedure. We think it would be just and proper to apply the same kind to test for finding out the real meaning of the expression 'interlocutory order' occurring in section 397(2). 24. In Halsbury's Laws of England, 3rd Edition, Vol. 22, at page 742 in para 1606, it has been held as follows: ...a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required. In para 1607 it is said: In general a judgment or order which determines the principal matter in question is termed final . In para 1608 at pages 744 and 745 we find the words: An order which does not deal with the final rights of the parties, but either (1) is made before judgment and gives no final decision on the matters in dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inality attached to it. On the other hand, if a transfer order is not stayed, that has no element of finality because if the writ petition is allowed, the transfer order can be quashed at a later stage also. What flows from this discussion is that if the order has some irreversible effect which cannot be undone at the time of final hearing, then such order has an element of finality attached to it and cannot be termed as interlocutory order. 29. As advised by the Supreme Court, one should not even attempt to make a list of orders which are interlocutory and which are not. This shall have to be decided in the facts of each case. However, while deciding whether an order challenged is interlocutory or not, the Court can be guided by various decision rendered in this behalf including the decisions referred to hereinabove. 30. We therefore answer the question referred to us by holding that 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 aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of Commissioner of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd. AIR 1961 SC 1633, a Constitution Bench of the Supreme Court has held in no uncertain terms that reference jurisdiction or special jurisdiction is different from appellate or supervisory jurisdiction. The Supreme Court while considering jurisdiction of the High Court in a reference under Section 66 of the Indian Income-tax Act, 1922 has held that the High Court hearing a reference under that section did not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal. It acted purely in an advisory capacity on a reference which properly came before it under Section 66(1) and (2) of the 1922 Act. Their Lordships have also held that the High Court gives the Tribunal advice, but ultimately it is for the Tribunal to give effect to that advice. Their Lordships further held that it was the essence of such a jurisdiction that the Court shall decide only questions which were referred to it and not any other questions. Similar is the proposition of law laid down in the matter of Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of Income-tax, Bombay North AIR 1963 SC 1484 in which Thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in the matter of Sukumaran, P.M. and another v. Puthiya Kuttimappilakath Shalima 2008(2) Kerala Series 149 again by relying upon Kesho Nath Khurana (supra) and Kerala State Science Technology Museum (supra) has held that larger Bench should only answer the reference and send back the case. 40. Recently, the above-stated decision of Kesho Nath Khurana (supra) etc., were noted with approval by the Supreme Court in Constitution Bench judgment in the matter of Supreme Court Advocates-On-Record Association and another v. Union of India (2016) 5 SCC 1. 41. Not only this, Full Bench of this Court in the matter of Ratan Kumar Jain v. State of M.P. Ors. 2013 (II) MPJR-CG 71 it has been held that reference jurisdiction is governed by the rules framed by the High Court and while considering the scope of advisory limited jurisdiction, it has further been held that unless the stated question is referred by the referring Judge to the larger Bench, the larger Bench is not right in answering the question and observed as under: - 26. In the light of well settled legal principle quoted supra, it is clear to us that since the learned Single Judges while making reference though quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court dated 10th April, 2006. This Full Bench cannot go beyond that i.e. this Full Bench cannot enter into the merits of the cases. We have perused the reference and we find substance in the argument advance by learned counsel. The scope of reference made to the Full Bench is to the extent that whether in view of the order of the Apex Court in the case of T.N. Godavarman dated 10th April, 2006 these writ petitions are liable to be dismissed in limine without going into the merits of the cases or not. When the scope of reference is particular and specific, then the Full Bench has to answer the reference only. The Full Bench cannot go beyond that. In this respect, we are fortified in our view by the judgment of the Apex Court in the case of Kerala State Science and Technology Museum v. Rambal Co. and others reported in (2006) 6 Supreme Court Cases 258 : (2006 AIR SCW 408)..... 43. In the light of above-stated reason, in my considered opinion, the question as to what are the interlocutory orders cannot be answered in this limited reference made to the Full Bench by the Division Bench, as it is beyond the jurisdiction of the Full Bench to answer the question what has not been re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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