THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
Writ Appeal No.44 of 2014
DATED:21.1.2014 Between:
B. Krishna Chaitanya, Hyderabad.
… Petitioner And The Government of Andhra Pradesh Represented by its Secretary (Special), Social Welfare Department, Hyderabad and others.
….Respondents THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
Writ Appeal No.44 of 2014
Judgment: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be preferred and admitted against the judgment and order of the learned Single Judge dated 27.12.2013, by which, the learned Single Judge has allowed the prayer for withdrawal of the writ petition, being, Writ Petition No. 38387 of 2013 and granted liberty to the appellant-writ petitioner to pursue the Writ Petition No. 24609 of 2013.
This order, in our view, is not an appealable order as Order 43 Rule 1 of the Civil Procedure Code, 1908 does not provide as to appealability of this sort of order. From the text of the order, it appears to us that it must have been passed under the provision of Order 23 of the Code of Civil Procedure. Rule 24 of the Writ Proceedings Rules, 1977 framed by this Court has adopted the Code of Civil Procedure to regulate the writ jurisdiction.
Even in our view, it is not a judgment within the meaning of Clause 15 of Letters Patent as the learned Single Judge has not decided anything in the writ petition. However, learned counsel for the appellant says that the learned Single Judge has passed the order on a mistaken fact and such mistaken fact has been recorded in the order itself. We are of the view that whether it has been passed on a mistaken fact or not, can only be scrutinized and examined by the learned Single Judge, if lawful approach is made and we cannot do it at the first instance.
Even then, the learned counsel for the appellant would argue the matter on merits and relies on a decision of the Supreme Court in the case of Comptroller and Auditor General of India vs. K.S.
[1]
Jagannathan & Others . We are of the view that the aforesaid judgment may or may not have any relevance on the merits of the case since we are not deciding the matter on merits nor the learned Single Judge has done so. Hence, above judgment is not helpful to the appellant. It is appropriate to mention that the aforesaid Supreme Court judgment has been cited, rather a passage thereof, relied on and recorded by a learned Single Judge of this Court in the judgment rendered in the case of P. Dharma
[2]
Rao and others vs. Managing Director, A.P.T.T.D.C. Ltd., has been shown to us.
We, therefore, dismiss the appeal. However, we grant liberty to the appellant to take steps in accordance with law, as may be advised.
Consequently, the miscellaneous applications, if any pending, shall also stand dismissed. No costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J 21.1.2014 PNB
[1] 1986 (2) SCC 679
[2] 1996(4) ALD 513