Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 118 of 2018 Appellant :- Jai Ram Kushwaha Respondent :- Bindu Devi And Ors Counsel for Appellant :- Nitesh Kumar Srivastava,Manvendra Nath Singh Counsel for Respondent :- C.S.C.,Pradip Kumar Srivastava
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
Civil Misc. Delay Condonation Application No.1 of 2018
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 applicant 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 :- 27.2.2018 SK (Dilip Gupta, J.) (Jayant Banerji, J.)
Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 118 of 2018 Appellant :- Jai Ram Kushwaha Respondent :- Bindu Devi And Ors Counsel for Appellant :- Nitesh Kumar Srivastava,Manvendra Nath Singh Counsel for Respondent :- C.S.C.,Pradip Kumar Srivastava
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Special Appeal has been filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules for setting aside the judgment and order dated 12 January 2018 of a learned Judge of this Court by which Writ-C No.9384 of 2016 that had been filed by Bindu Devi, who has been arrayed as respondent no.1 in this Special Appeal, was allowed.
The writ petition was directed against the order dated 18 June 2011 passed by the Tehsildar cancelling the income certificate of the petitioner as also the orders dated 4 November 2011 and 25 January 2016 by which the Statutory Appeal and the Second Appeal filed by the petitioner had been dismissed respectively.
A preliminary objection has been raised by learned counsel Sri Pradeep Kumar Srivastava, learned counsel appearing for respondent no.1 that this Special Appeal would not be maintainable as the writ petition was directed against the appellate order also.
We find substances in the objection raised by learned counsel for the respondent. The Special Appeal would not be maintainable in view of the decision of this Court in Hasib Ahmad v. State of U.P. and others reported in 2008 (6) ADJ 757 as the writ petition had been filed to assail an appellate order also. 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 :- 27.2.2018 SK (Dilip Gupta, J.) (Jayant Banerji, J.)