Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 126 of 2018 Appellant :- Ram Briksha Singh Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Vishvajeet Pandey,Durgesh Chandra Tiwari Counsel for Respondent :- C.S.C.,Ajeet Kumar Singh
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 :- 28.2.2018 NSC (Dilip Gupta, J.) (Jayant Banerji, J.)
Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 126 of 2018 Appellant :- Ram Briksha Singh Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Vishvajeet Pandey,Durgesh Chandra Tiwari Counsel for Respondent :- C.S.C.,Ajeet Kumar Singh
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 23 July 2012 passed by a learned Judge of this Court in Writ-A No.47921 of 2005 that had been filed by the appellant. The writ petition was directed against the order dated 28 January 2005 passed by the respondent No.2 in the writ petition by which the services of the petitioner were terminated. The petitioner has also sought the quashing of the order dated 6 October 2003 and the order dated 4 March 2004 by which the Statutory Appeal and the Revision 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 :- 28.2.2018 NSC (Dilip Gupta, J.) (Jayant Banerji, J.)