Madhya Pradesh High Court
Mukesh Kumar Sharma vs Anil Kumar Trivedi on 10 February, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 10th OF FEBRUARY, 2025
REVIEW PETITION No. 146 of 2025
MUKESH KUMAR SHARMA
Versus
ANIL KUMAR TRIVEDI AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for the petitioner.
Shri M.P.S.Raghuvanhi - Senior Advocate with Shri Manish Gurjar - Advocate for
the respondent No.1.
Shri Ankur Mody - Additional Advocate General for the respondents No.2 to 3/
State.
ORDER
Per: Justice Anand Pathak
The present review petition is preferred by the review petitioner in
respect of order dated 20th January 2025 passed in Writ Appeal No.54/2025
(Anil Kumar Trivedi Vs. The State of Madhya Pradesh and others), whereby
the writ appeal preferred by the appellant - Anil Kumar Trivedi (respondent
No.1 herein) is disposed of remanding the matter back to the learned Writ
Court.
2. Precisely stated facts of the case are that respondent No.1 at the
relevant point of time was working as Uchcha Madhyamik Shikshak and
under the policy of State Government, he was appointed as Block Resource
Center Coordinator (BRCC) on deputation basis vide order dt.28.12.2022.
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The other persons out of same deputation order dt.28.12.2022 are continuing
to hold their respective post of BRCC in different places. However, a show
cause notice was issued to the respondent No.1 levelling frivolous charges.
He replied to the show cause notice denying the allegations levelled against
him. Without considering the reply to the notice, the order of repatriation
dt.17.12.2024 has been issued and on the same date another order has been
issued by which the current charge to the post of BRCC has been given to the
present review petitioner. Therefore, he preferred W.P.No.41015/2024.
3. Learned Writ Court vide order dated 06.01.2025 issued notices to
the respondents, however, the prayer for interim relief has not been
considered. Therefore, respondent No.1 filed Writ Appeal No.54/2025
against the aforesaid order.
4. It was the submission of respondent No.1 before Writ Appellate
Court that once the Single Bench issued notice to respondents, non grant of
interim relief will amount to rejection of interim relief without giving any
reason as the entire petition itself will be rendered infructuous by the time it
will be heard finally.
5. Writ Appellate Court vide order dated 20.01.2025 remanded the
matter back to the learned Writ Court with a request to consider the case as
expeditiously as possible in which respondents shall file reply within 2-3
weeks and learned Writ Court would try to make all endeavours to decide the
case at an expeditious note, so that parties may come to know about the fate
of the litigation at the earliest.
6. Being aggrieved by the aforesaid order, review petitioner preferred
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instant review petition on the ground that no appeal lies against an
interlocutory order. The order passed by the learned Writ Court is only an
order of issuance of notice. Thus, the orders in which only notices are issued
and interim relief is not considered shall not be amenable to the writ
jurisdiction. Therefore, no writ appeal was maintainable against the order of
issuance of notice only. It is neither a final order nor an order having
trappings of final order nor it decides any valuable right of party. It is further
submitted that no opportunity of hearing was granted to the review petitioner
as in the order dated 06.01.2025 passed by the learned Writ Court, name of
counsel for the review petitioner was mentioned but no copy of the writ
appeal was supplied to the counsel.
7. Learned senior counsel appearing for the respondent No.1 as well as
learned Additional Advocate General appearing for the respondents/State
submit that there is no error apparent on the phase of the record. It was an
intra court appeal and therefore, the power is available to the appellate court
to exercise the power just like writ court under Article 226 of the
Constitution. They pray for dismissal of the review petition.
8 . Heard learned counsel for the parties and perused the documents/
record appended thereto.
9. In the present case, core issue raised by the review petitioner is that
no appeal could have been filed against the interim order because in the
impugned order only show cause notice was issued and interim relief was not
considered. Therefore, appeal is not maintainable to the writ
jurisdiction. Another ground raised by the review petitioner is regarding
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opportunity of hearing.
10. In given facts and circumstances of the case, rejection of interim
relief means petitioner of Writ Petition had to join at transferred place of
posting after repatriation and private respondent would enjoy the benefit of
an order which termed by petitioner as illegal.
11. So far as first ground regarding maintainability of the writ
appeal is concerned, this is a case where learned Writ Court heard the
petition on admission and issued notice to other side without considering the
interim relief. Therefore, interim relief so far as ex parte stay is concerned,
was implidely rejected. In Civil Procedure Code, ex parte interim injunction
(Order 39 Rule 3 CPC) is different than bi parte injunction (Order 39 Rule 1
and 2 of CPC). Therefore, interim reliefs are carved out in different tenor and
texture. Here ex parte interim relief was rejected because notice was issued.
So far as bi parte relief is concerned, it also appears to be overlooked
because counsel for private respondent (present review petitioner) was also
present. Therefore, ex parte and bi parte interim relief appeared to be
rejected.
12. Apex Court in the case of Midnapore Peoples' Coop. Bank Ltd.
and others Vs. Chuilal Nanda and others (2006) 5 SCC 399 has discussed in
respect of impact of interim order/interlocutory order and gave guidelines in
following manner :-
15. Interim orders/interlocutory orders passed during the pendency
of a case, fall under one or the other of the following categories :
(i) Orders which finally decide a question or issue in
controversy in the main case.
(ii) Orders which finally decide an issue which
materially and directly affects the final decision in the
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main case.
(iii) Orders which finally decide a collateral issue or
question which is not the subject-matter of the main
case.
(iv) Routine orders which are passed to facilitate the
progress of the case till its culmination in the final
judgment.
(v) Orders which may cause some inconvenience or
some prejudice to a party, but which do not finally
determine the rights and obligations of the parties.
16. The term "judgment" occurring in clause 15 of the Letters
Patent will take into its fold not only the judgments as defined in
Section 2 (9) CPC and orders enumerated in Order 43 Rule 1
CPC, but also other orders which, though may not finally and
conclusively determine the rights of parties with regard to all or
any matters in controversy, may have finality in regard to some
collateral matter, which will affect the vital and valuable rights and
obligations of the parties. Interlocutory orders which fall under
categories (i) to (iii) above, are, therefore, "judgments" for the
purpose of filing appeals under the Letters Patent. On the other
hand, orders falling under categories (iv) and (v) are not
"judgments" for the purpose of filing appeals provided under the
Letters Patent."
13. Full Bench of this Court had occasion to dwell upon this issue in
the case of Arvind Kumar Jain and others Vs. State of M.P. and others [2007
(3) MPLJ 565] and has given finding in following manner :-
26. From the aforesaid enunciation of law there remains no
scintilla of doubt that interlocutory orders on certain
circumstances, could be appealed against under the Letters Patent.
Despite the fact they are interlocutory in nature they can be put
into the compartment of judgment if it affects the merits of the
case between the parties by determining some rights or liabilities.
There can be three categories of judgments, final judgment,
preliminary judgment and intermediary judgment or interlocutory
judgment. If the order finally decides the question and directly
affects the decision in the main case or an order which decides the
collateral issue or the question which is not the subject matter of
the main case or which determines the rights and obligation of the
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parties in a final way indubitably they are appealable.
27. In the case of W.A. No. 69/2007 Nav Nirman (Milan) Deria v.
State of M.P. and Ors., the Division Bench had taken note of the
decision rendered in the case of Shah Babulal Khimji (supra), and
expressed the opinion that the refusal of the interim order had
caused serious injustice to the appellants and hence, the appeal
was maintainable.
28. In Tejpal Singh (supra), the Division Bench has scanned the
order and concluded that the Single Judge has really passed an
order which materially affects the final decision in the main case
and has vital impact on the case and hence, the appeal against the
said order was maintainable.
29. In our considered opinion, the said decisions are in consonance
with the law laid down by the Apex Court in various cases and
also in accord with the proper interpretation placed on the
proviso.
30. In Arvind Kumar Jain (supra), the Division Bench has held
that against an interim order no writ appeal would be maintainable
as bar has been created by the proviso appended to Section 2
(1) of the Act. The said decision is not in concordance with the
decisions of the Apex Court. That apart, in the said decisions
erroneous interpretation has been placed on the proviso to Sub-
section (1) of Section 2 of the Act and, therefore, we conclude and
hold that the said decision does not lay down the law correctly.
31. In view of the aforesaid premised reasons we proceed to
record our conclusions in seriatim:
(a) The decision rendered in the case of Arvind Kumar
Jain (supra), does not lay down the law correctly and is
hereby overruled.
(b) Any decision treading on the same path has to be
deemed to have been overruled.
(c) The decisions rendered in Nav Nirman (Milan)
Deria (supra) and Tejpal Singh (supra), enunciate the
law correctly.
(d) The proviso to Section 2 (1) of Madhya Pradesh
Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal)
Adhiniyam, 2005 does not create an absolute bar to
prefer an appeal to the Division Bench.
(e) An appeal can be preferred against an order regard
being had to the nature, tenor, effect and impact of the
order passed by the learned Single Judge.
(f) The guidelines given in the cases of Shah Babulal
Khimji (supra), Central Mine Planning and Design
Institute Ltd. (supra), Deoraj (supra), Liverpool &
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London S.P. & I. Association Ltd. (supra), Subal Paul
(supra) and Midnapore Peoples' Cooperative Bank
Ltd. (supra) are to be kept in view while deciding the
maintainability of an appeal.
(g) It should be borne in mind that instances given in
the aforesaid decisions are not exhaustive but
illustrative in nature, because various kinds/categories
of orders may be passed in exercise of jurisdiction
under Article 226 of the Constitution of India.
(h) The facts in each case, the nature and the character
of the order are to be scrutinized to appreciate the
trappings of the same.
1 4 . Therefore, in the present case, when ex parte interim relief is
impliedly declined, then it materially affects the rights of the parties because
in given fact situation if petitioner seeking injunction is not given interim
relief, then possibility can not be ruled out that State Government or private
respondents may cause displacement to the party seeking injunction. This
way purpose of filing the petition would be defeated or petition be rendered
infructuous. It may create factual complications also.
15. Therefore, in the considered opinion of this Court, appeal against
issuance of notice and implied rejection of ex parte order was maintainable.
However, maintainability does not mean entitlement. Every case has to be
seen on its own merit for interim relief and for consideration of interim relief
in writ appeal and thereafter determination would be made whether case has
some grounds on merits or not. No straight jacket formula can be applied for
entertainment of such writ appeal on maintainability as well as on merits.
1 6 . This order is being passed in peculiar fact situation because
appellant raised the point that he was repatriated illegally because he was on
deputation by way of selection/examination by respondents. Therefore, his
repatriation can not be at the whims of respondents to accommodate the
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present review petitioner. Since appellant might have suffered in the hands of
respondents whereby they posted the present review petitioner ignoring all
these aspects referred above, therefore, indulgence was shown in such
peculiar facts and circumstances. It is not that every issuance of notice
simplicitor (without interim relief/stay) may attract writ appeal.
17. Since it is intra court appeal and power is available to the appellate
court to exercise just like writ court under Article 226 of the Constitution,
and record is available for perusal, therefore, on this count also writ appeal
was maintainable but with caveat as discussed above.
18. Since appeal was found to be maintainable, therefore, first
argument of review petitioner goes.
19. So far as review petition on merits is concerned, it is to be decided
whether any error apparent on face of record is existing or not. On close
scrutiny it appears that no material prejudice is caused to the review
petitioner because appellant was not given any benefit of retention in the
borrowing department, however, present review petitioner was also injuncted
not to work as BRCC. If the review petitioner would have been permitted to
continue, then it would have amounted to perpetuate the illegality in the
hands of executive in the light of judgment of Apex Court in the case
of Ashok Kumar Ratilal Patel Vs. Union of India and another (2012) 7 SCC
757 . As such, matter was remanded back with the direction to the parties to
complete the pleadings and get the case heard at an early date. A request was
also made to the learned Writ Court to decide the case as expeditiously as
possible. Therefore, if review petition was not noticed, even then no material
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prejudice has been caused. Final rights are yet to be crystalized.
20. Even otherwise, scope of review is well defined. In the case of
Kamlesh Verma Mayawati and Others, (2013) 8 SCC 320, principles relating
to review jurisdiction have been laid down. The principles relating to review
jurisdiction may be summarized as follows:
When the review will be maintainable:
(i) Discovery of new and important matter or evidence
which, after the exercise of due diligence, was not
within knowledge of the petitioner or could not be produced
by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been interpreted in
Chhajju Ram Vs. Neki, (1921-22) 49 IA 144 and approved by this
Court in the case of Moran Mar Basselios Catholicos Vs. Most
Rev. Mar Poulose Athanasius, AIR 1954 SC 526 to mean "a
reason sufficient on grounds at least analogous to those specified
in the rule".
When the review will not be maintainable:
"(i) A repetition of old and overruled argument is not enough
to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the
original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest
on the face of order, undermines its soundness or results in
miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby
an erroneous decision is reheard and corrected but lies only
for patent error.
(vi) The meres possibility of two views on the subject cannot be a
ground for review.
(vii) The error apparent on the face of the record should not be an
error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within
the domain of the appellate Court, it cannot be permitted to
be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the
time of arguing the main matter had been negatived."
21. It is also held by the Apex Court in the case of State Of
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West Bengal & Ors. Vs. Kamal Sengupta & Anr., (2008) 8 SCC 612 that
mistake or error apparent on the face of the record means that mistake or
error which is prima facie visible and does not require any detail
examination. Erroneous view of law is not a ground for review and review
cannot partake the category of the appeal.
22. Not only this, counsel for the respondent No.1 informs this Court
that vide order dated 29.1.2025, after order dated 20.01.2025 passed in Writ
Appeal No.54/2025, charge has been given to the third person namely;
Dharmendra Singh Dhakad. Therefore, charge is neither with review
petitioner nor with contesting respondent No.1. Therefore, on this count
also, it is apposite that writ court may decide the case at an expeditious note.
However, no case for review is made out.
23. Accordingly, Review petition sans merits is hereby dismissed.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
SP
