Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 167 of 2018 Appellant :- Gauri Shanker Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Satya Prakash Shukla Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
Order on delay condonation application.
Heard learned counsel for the parties.
In view of the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act, we are satisfied that the appellant was prevented by sufficient cause from preferring the Special Appeal within the period of Limitation.
The application is, accordingly, allowed and the delay in filing the Special Appeal is condoned.
Order Date :- 28.3.2018 sfa/ (Dilip Gupta, J) (Jayant Banerji, J)
Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 167 of 2018 Appellant :- Gauri Shanker Tiwari Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Satya Prakash Shukla Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Special Appeal is directed against the judgement and order dated 14 February 2017 of a learned Judge of this Court by which Writ-A No. 75837 of 2011 filed by the appellant to challenge not only the dismissal order but also the order dismissing his appeal, was dismissed.
Though number of submissions have been made by the learned counsel for the appellant to assail the judgment, learned Standing Counsel has raised a preliminary objection that the Special Appeal under VIII Rule 5 of the Rules of the Court would not be maintainable for the reason that the writ petition was directed against an appellate order also.
We find substance in the objection raised by the learned Standing Counsel appearing for the respondents.
The writ petition was filed not only against the dismissal order but also against the appellate order. The Special Appeal would, therefore, not be maintainable in view of the decision of a Division Bench of this Court in the case of Hasib Ahamad Vs. State of U.P. and Ors. reported in 2008 (6) ADJ 757. The observations are as follows:-
"In the present case, the appellate power had been exercised by the Commissioner under Rule 28 of U.P. Scheduled Commodities Distribution Order, 2004 which had been framed under Section 3 of the Essential Commodities Act, 1955. Thus the appellate power exercised by the Commissioner in the present case referable to an appellate power conferred under an Act. Thus according to the ratio of the Division Bench in the case of Ram Dhyan Singh (supra), the present appeal is not maintainable under Chapter VIII Rule 5 of the Rules of the Court. The Special Appeal having been filed against a judgment of learned Single Judge arising out of a writ petition in which appellate order passed by the Commissioner was challenged which appellate order was passed in exercise of appellate jurisdiction under an Act is not maintainable under Chapter VIII Rule 5 of the Rules of the Court."
The Special Appeal is, accordingly, dismissed as not maintainable.
Order Date :- 28.3.2018 sfa/ (Dilip Gupta, J) (Jayant Banerji, J)