Dismissed

Surajpal v. Satish Chandra and 4 Others

Allahabad HC13 Nov 2019SPLAD/968/2019

Case brief

AI extract

What is this about?

The High Court held that a special appeal filed under Rule 5 of Chapter VIII is not maintainable against a single judge's order passed in the exercise of writ jurisdiction under Article 227. Citing precedents, the Court dismissed the appeal as not maintainable but condoned the filing delay.

What did the court decide?

The special appeal was dismissed as not maintainable, but the delay in filing the application was condoned and the appeal was allowed to be registered with a regular number.

Surajpal Vs Satish Chandra and 4 Others — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 34

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Case :- SPECIAL APPEAL DEFECTIVE No. - 968 of 2019

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Appellant :- Surajpal Respondent :- Satish Chandra And 4 Others Counsel for Appellant :- Mithilesh Kumar Tiwari Counsel for Respondent :- Gaurav Tripathi

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.

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Heard Mr. Mithilesh Kumar Tiwari, learned counsel for appellant and Mr. Aushim Luthra Advocate holding brief of Mr. Gaurav Tripathi, learned counsel for respondents 1 to 4.

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Petitioners-respondents 1 to 4 filed a writ petition under Article 227 of Constitution of India wherein an interim order dated 25th September, 2019.has been passed by learned Single Judge.

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This intra-court appeal under Chapter VIII Rule 5 of High Court Rule has arisen from order dated 25.09.2019 whereby learned Single Judge has restrained Suraj Pal, respondent-appellant from changing nature of property and also creating third party interest.

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No intra Court Appeal lie against a judgement passed in writ petition filed under Article 227 of Constitution of India in view of Division Bench judgement of this Court in Vajara Yojna Seed Farm and Ors Vs. Presiding Officer, Labour Court II and Ors. (2003) 1 UPLBEC 496 . The Court in para 64 of judgment, held :

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"64. From the above discussions and looking into the provisions of U.P. Act No. 14 of 1962 as amended by Amendment Act of 1981 and Chapter VIII, Rule 5 of the Rules of the Court, 1952, special appeal is excluded from a judgment of one Judge of this Court in following categories :-

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(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court.

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(ii) Judgment of one Judge in the exercise of revisional jurisdiction.

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(iii) Judgment of one Judge made in the exercise of its power of Superintendence.

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(iv) Judgment of one Judge made in the exercise of criminal jurisdiction.

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(v) Judgment of order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be more in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in State List or Concurrent List.

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(vi) Judgment or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act."

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(Emphasis added.)

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Similar controversy came up before Full Bench arising out of provisions of U.P. Scheduled commodities Distribution Order, 2004, in Sheet Gupta vs. State of U.P. and others AIR 2010 All. 46 where matter was considered in detail and law was finally laid down in para 15 thereof. In respect of any order passed by a learned Single Judge in the exercise of jurisdiction conferred by Article 226 or 227 of Constitution in respect of any judgment or award by the Tribunal Court or Statutory Arbitrator and certain orders made by a Jude in exercise of the powers under Article 226 or 227 of Constitution, a Special Appeal has been held to be barred.

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Para 15 of Full Bench judgment in Sheet Gupta (supra) is relevant, which reads as under :

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"Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:

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The judgment passed by one Judge in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court;

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the order made by one Judge in the exercise of revisional jurisdiction;

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the order made by one Judge in the exercise of the power of Superintendence of the High Court;

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the order made by one Judge in the exercise of criminal jurisdiction;

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the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by

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(i) the tribunal,

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(ii) Court or

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(iii) statutory arbitrator

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made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act. with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;

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the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of

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(i) the Government or

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(ii) any officer or

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(iii) authority,

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made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India.”

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(Emphasis added)

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Aforesaid authorities have also been followed by Division Bench of this Court (Lucknow Bench) in Abhishek Sahu vs. Civil Judge (S.D.), Lucknow and Ors. 2014(11) ADJ 407 .

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Learned counsel for appellant placed reliance on a judgement 12.07.2017 of this Court passed in Special Appeal No. 369 of 2017 wherein Court has not at all examined the question of maintainability of special appeal. Judgement relied upon by learned counsel is of no help as issue relating maintainability of appeal has not been dealt with. Therefore, aforesaid judgement is neither binding nor it will be applicable to facts of case where appeal is not maintainable at all.

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The appeal is accordingly dismissed as not maintainable. Order Date :- 13.11.2019 YK

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Court No. - 34

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Case :- SPECIAL APPEAL DEFECTIVE No. - 968 of 2019

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Appellant :- Surajpal Respondent :- Satish Chandra And 4 Others Counsel for Appellant :- Mithilesh Kumar Tiwari Counsel for Respondent :- Gaurav Tripathi

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Hon'ble Sudhir Agarwal,J.

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Hon'ble Rajeev Misra,J.

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Civil Misc. Delay Condonation Application No. Nil of 2019.

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Heard Mr. Mithilesh Kumar Tiwari, learned counsel for appellant and Mr. Aushim Luthra Advocate holding brief of Mr. Gaurav Tripathi, learned counsel for respondents 1 to 4.

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Delay in filing appeal has been satisfactorily explained. As such, delay in filing appeal is hereby condoned.

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This application stands allowed.

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Let appeal be registered with regular number and old number shall also continue to be shown in bracket for finding out details of case, whenever required by parties with reference to either of the two number.

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Order Date :- 13.11.2019

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Surajpal v. Satish Chandra and 4 Others

Case brief

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Surajpal v. Satish Chandra and 4 Others

Case brief

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