Madhya Pradesh High Court
The State Of Madhya Pradesh vs Amar Chand on 25 April, 2022
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WA No. 918 of 2021
(THE STATE OF MADHYA PRADESH AND OTHERS Vs AMAR CHAND)
Dated : 25-04-2022
Ms. Janhvi Pandit, learned Deputy Advocate General for the appellant/State.
Shri Sudhir Rawat, learned counsel for the respondent.
Heard on the question of maintainability.
The aspect of maintainability is raised by Shri Sudhir Rawat, Advocate on
twin counts. Firstly, it is submitted that earlier appellant filed W.A. No.1068/2019
to assail the order of Learned Single Judge passed in W. P. No.20905/2020.
Before the Division Bench on 9.9.2020, after arguing for sometime, the State
counsel withdrew the writ appeal with the liberty to approach the Single Judge by
way of review petition.
In turn, a review petition No. 1227/2020 was filed which came to be
dismissed on 18.2.2021. Thereafter, present writ appeal is filed assailing the order
passed in review jurisdiction as well as the original order passed in the writ petition.
It is argued that :-
(1) In the teeth of Order 47 Rule 7 of C.P.C. no appeal lies against the
order rejecting the review. Reliance is placed on the judgment of Supreme Court in
Vinod Kapoor Vs. State of Goa and others (2012) 12 SCC 378.
(2) The Court while permitting withdrawal of writ appeal in the
previous round, did not grant permission to file another writ appeal if occasion
arises.
Thus, in the absence of any liberty, the second writ appeal is not
maintainable and runs contrary to the principle laid down by Full Bench in Great
Galleon Ltd and others vs. Union of India and another 2009 (2) MPLJ 609.
Ms. Janhvi Pandit, Deputy Advocate General placed reliance on the previous
order and urged that liberty was indeed granted to take recourse to the remedy as
is available in accordance with law. Writ appeal is certainly one such remedy.
Secondly, the factual backdrop of the full Bench judgment in Great Galleon Ltd
(supra) shows that in the said case, the claim had rendered infructuous which is
clear from a conjoint reading of para-8 and 42 of the full Bench Judgment. In this
backdrop, the Court did not entertain the second writ appeal. No other point is
raised on the question of maintainability.
We have bestowed our anxious consideration on rival contentions and are of
the opinion, this writ appeal is maintainable because :-.
(1) Even assuming that order rejecting review petition cannot be assailed
in the teeth Order 47 Rule 7 of the C.P.C, the writ appeal is certainly maintainable
against the order passed by the writ Court in W.P. No.20905/2018.
So far the Full Bench judgment is concerned, it is in our opinion
distinguishable for twin reasons. Firstly, in the case before the Full Bench liberty
was granted to approach the another forum. Another forum in the said case was
the Custom and Excise Appellate Tribunal whereas in the instant case, the liberty to
file review was given before the same forum i.e. High Court. As rightly pointed out
by the Deputy Advocate General in the case before the Full Bench, the main
prayer had rendered infructuous which is taken note of by the Full Bench in para-
42 of the judgment. This para reads as under:-
(42) " In view of the aforesaid analysis, we have no
hesitation in our mind that the present writ appeal is not
maintainable inasmuch as the order impugned was
assailed in W.A. No.718/2006 which was dismissed as
withdrawn on the basis of an application filed by one of
the appellants which was later on concurred by the
learned counsel for other appellant making a submission
that it has been rendered infructuous inasmuch as the
amount had already been deposited. That apart, we have
referred to the nature of pleadings. Ergo, the inevitable
result is the dismissal of the writ appeal which we direct.
We cannot refrain ourselves from reiterating what we
have said earlier that filing of the present writ appeal is
an abuse of the process of Court and, therefore, we
decline to entertain the writ appeal".
[Emphasis supplied]
Apart from this, the Division Bench in while passing order in W.A.
No.1068/2019 permitted the appellant to take recourse of the remedy as is available
in accordance with law. This observation /liberty is wide enough to permit the State
to file instant writ appeal. Thus, preliminary objection regarding maintainability is
not maintainable, and is rejected.
As agreed, list this matter in the next week along with connected matter
W.A. No.917/2021.
SUJOY PAUL) (DWARKA DHISH BANSAL)
JUDGE JUDGE
ahd
Signature Not Verified
SAN
Digitally signed by MOHD AHMAD
Date: 2022.04.26 10:32:45 IST
