[Cites 7, Cited by 0]
Orissa High Court
Sri Sanjeeb Kumar Kar vs Sri Anadi Charan Giri on 10 March, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. NO. 1331 OF 2025
In the matter of an appeal under Article-4 of the Orissa High Court Order,
1948 read with Clause-10 of the Letters Patent of the Patna High Court
from the order dated 21.07.2025 passed in WP(C) No.28275 of 2022 by
the learned Single Judge of this Court.
Sri Sanjeeb Kumar Kar .... Appellant
-Versus-
1. Sri Anadi Charan Giri .... Respondents
2. The Election Officer-cum-BDO,
Remuna Block, Balasore
Advocates appeared in this case:
For Appellant : Mr. B. Baug, Sr. Advocate
with M/s. M. Baug, G.R. Sahoo
& H. Sahu, Advocates
For Respondents : Mr. U.C. Behura, AGA
CORAM:
HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD
HON'BLE MR. JUSTICE CHITTARANJAN DASH
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Date of hearing & judgment :: 10.03.2026
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PER KRISHNA S. DIXIT,J.
A returned candidate in the Grama Panchayat election, who
happens to be Sarpanch, is invoking Intra-Court appellate
jurisdiction for laying a challenge to a learning Single Judge's
order dated 21.07.2025, whereby his WP(C) No.28275 of 2022 has
been negatived. In the said Writ Petition, he had called in question
the order dated 29.09.2022 passed by learned Civil Judge (Jr.
Division) in pending Election Misc. Case No.20 of 2022, whereby
the delay in filing the challenge has been condoned.
2. Learned counsel appearing for the Appellant vehemently
submits that the order of the learned Single Judge is liable to be
voided on the following grounds:
(a) Learned Single Judge grossly erred in holding that, against
order of the Civil Judge an appeal lies under section 38(4) of the
Odisha Grama Panchayat Act, 1964, when the consistent view of
this Court is to the contrary;
(b) Learned Single Judge would not have held that the
Coordinate Bench's decision in Niranjan Sahu v. Narasu
Satpathy, AIR 1970 ORI 46, is per incuriam in view of decision in
Digambar Pradhan v. Arjun Pradhan 1972(1) C.W.R. 74.
(c) When the impugned order does not in so many words say
under which Article, i.e., whether under Article 226 or under
Article 227 or under both, the power is exercised by the learned
Single Judge, it should be presumed that the same has been
rendered in exercise of Article 226 jurisdiction and not Article 227;
therefore, the Intra-Court Appeal is maintainable.
(d) Learned AGA Mr. Behura on our request accepting notice
for the 2nd Respondent with equal vehemence resisted the appeal on
the ground of maintainability pressing into service a Full Bench
decision of this Court in Mahammed Saud v. Dr. (Maj) Shaikh
Mahfooz, AIR 2009 ORI 46. Learned Single Judge has exercised
power under Article 227, notwithstanding, the employment of
Article 226 in the pleadings of Appellant; Articles 226 & 227 are
habitually employed in the pleadings of parties and therefore, that
should not be the decisive factor in deciding which of the Articles
has been invoked while rendering the impugned order. Lastly, he
submits that by virtue of referential application of the provisions of
the CPC 1908, the Appellant should have awaited passing of the
final order in the Election Petition and if the same is to be decided
adverse to his interest, then he will have a choate right to knock at
the doors of Writ Court or such other authority.
3. Having heard learned counsel appearing for the parties and
having perused the Appeal papers, we decline indulgence in the
matter, inasmuch as the Full Bench in Mahammed Saud supra has
held that if an order is passed under Article 227 by the learned
Single Judge, it is not appealable. Paragraph 47(3) reads as under:
"47(3) A writ appeal shall lie against the judgment/orders
passed by a learned single Judge in a writ petition filed under
Art. 226 of the Constitution of India. In a writ application filed
under Arts. 226 and 227 of the Constitution, if any
order/judgment/decree is passed in exercise of jurisdiction
under Art. 226, a writ appeal will lie, whereas no writ appeal
will lie against judgment/order/decree passed by a single Judge
exercising powers of superintendence under Art. 227 of the
Constitution."
3.1. The vehement submission of learned counsel appearing for
the Appellant-Sarpanch that in deciding what jurisdiction was
exercised by the learned Single Judge, regard should be had to the
substance of the litigation, is true. Shortly put, the substance of the
litigation is challenge to an interlocutory order of the learned Civil
Judge (Jr. Division), who has condoned delay in launching
challenge to the election of the Appellant as Sarpanch. No order is
passed on the main challenge, which is still pending consideration
on his file. Admittedly, the Civil Judge (Jr. Division) is the
designated Court for challenging the elections of the kind and that
he has power to condone delay. However, existence of power is
one thing and its exercise is another. Mere existence cannot be a
justification for its exercise. To that extent, learned counsel for the
Appellant is right. So far as order of the kind is concerned.
Essentially, the order of the Civil Judge (Jr. Division) is an order of
a designated Court under the Election law. Therefore, it partakes
the character of an order passed by a Tribunal within the admitted
jurisdiction in the light of Apex Court decision in Naresh Shridhar
Mirajkar V. State of Maharashtra, AIR 1967 SC 1. Challenge to
such order is traditionally treated as being launched only under
Article 227. Therefore, impugned order is to be termed as the one
rendered in exercise of Article 227 of the Constitution of India,
ignoring the ornamental employment of Article 226 in the petition.
3.2. The vehement submission of learned Counsel for the
Appellant that, when the learned Single Judge does not indicate as
to under which of these Articles that power has been exercised, it
should be presumed that the exercise is under Article 226, is too
far-fetched an argument. Whether an order is under Article 226 or
under Article 227, as already observed above, has to be adjudged
on the substance of the litigation brought before the Court. Even if
the learned Single Judge were to say that he has passed the
impugned order under Article 227 or under Article 226, or under
both the Articles, that would not be decisive. The Appellate Court
has to examine the matter on merits to arrive at a right conclusion.
For surely that would be the position where the impugned order is
silent as to under which of the Articles the same has been rendered.
3.3. The vehement submission of learned AGA that, main matter
is still pending before the learned Civil Judge (Jr. Division) and
that only if & after the same is decided adverse to this interest, the
Appellant can challenge decision on the main matter making
impugned order as one of the grounds in line with Order XLIII
Rule 1A of CPC 1908, cannot be accepted as a thumb rule. A party
aggrieved by an order, be it final or otherwise can have recourse to
the legal remedy. He cannot be asked to wait and to suffer such
waiting, ordinarily. To put it metaphorically, a diabetic patient
seeking precautionary medical treatment cannot be asked to wait
till Gangrene develops in his organs. In other words, the act of the
Appellant in approaching the learned Single Judge is too premature
and therefore, even otherwise the Appellant was not entitled to any
relief at the hands of the Single Judge, cannot be accepted.
3.4. A plethora of rulings were cited at the Bar in support of their
versions and counter versions. We need not undertake writing a
legal history of a case, once the latest position of law emerges from
the decisions cited at the Bar. Reinventing the wheel is not a
profitable exercise for the Court, when pendency has mounted up
beyond imagination.
3.5. It hardly needs to be mentioned that in line with the
legislative policy enacted under Section 14 of the Limitation Act,
1963, the period spent in prosecuting the Writ Petition and Writ
Appeal is liable to be discounted while computing the period of
limitation for challenging the order of learned Civil Judge (Jr.
Division) by way of appeal as provided under Section 38 of the
1964 Act.
In the above circumstances, this appeal is rejected on the
ground of maintainability alone without expressing anything on
merits of the matter. It is open to the Appellant to explore the
remedy elsewhere in accordance with law. In that connection, all
contentions of both the sides are kept open. The liberty given by
the learned Single Judge is kept intact.
(Dixit Krishna Shripad)
Judge
(Chittaranjan Dash)
Orissa High Court,
Signed by: PRASANT KUMAR Cuttack
SAHOO
The 10th day of March, 2026/Prasant
Reason: Authentication
Location: Orissa High Court
Date: 12-Mar-2026 17:56:15
