The Madhya Pradesh High Court recently comprising of a bench of Justice Subodh Abhyankar and Justice S.K. Singh upheld the maintainability of a writ appeal preferred against two separate orders passed by a Writ Court. (M/S Fort Crushing Metal Through Sunil Jian vs M.P. Paschim Kshetra Vidyut Vitran Co. Ltd. And Others)
The bench while rejecting the contentions raised by the Respondents challenging the maintainability of the appeal observed, "So far as Rule 7(1) of Order 47 of CPC is concerned, it stipulates that an order of the Court rejecting the review application shall not be appealable. In the present appeal, it has been preferred not only against the order passed by the writ court but also against the order passed in the review petition, and thus, it is not a case where the writ appeal has been preferred only against the order of rejection passed in review petition, in such circumstances, even if the said order passed in review petition is also challenged by the appellant in this writ appeal, it cannot be said that it would render the writ appeal as not maintainable."
Facts of the case
This appeal was preferred against two orders, one passed in Writ Petition No.20703 of 2018 whereas the other order was passed in Review Petition No.516 of 2019. It was submitted that the provisions of Section 2(1) of Madhya Pradesh Uchha Nyayalaya (Khand Nayaypeeth Ko Appeal) Adhiniyam, 2005, and the rules made thereunder do not provide one appeal against two separate orders.
In support of his contention counsel for the respondent relied upon a Division Bench decision of this Court in the case of State of M.P. and others Vs. Pankaj Chaudhary in W.A. No.77 of 2014. He also relied upon decisions rendered by the Supreme Court in the case of Shanker Motiram Nale Vs. Shiolalsing Gannusing Rajput reported as (1994) 2 SCC 753 and Suseel Finance & Leasing Co. Vs. M. Lata and others reported as (2004) 13 SCC 675.
He also referred to the provisions of Order 47 Rule 7 of CPC, which provides that an order of the Court rejecting an application for review is not appealable.
The aforesaid application was opposed by Senior counsel appearing for the appellant and it was submitted that the appeal was maintainable as the writ Court passed the order on 13.02.2019, whereas the review petition was filed after a delay of after 24 days, which has also been condoned by the writ Court, however, the review petition has been dismissed on 29.04.2019, whereas the present appeal has been preferred on 25.07.2019, after a delay of 70 days. Shri Zelawat also relied upon a subsequent decision rendered by Division Bench of this Court in the case of Central Madhya Pradesh Gramin Bank Vs. Nek Ram Singh reported as AIR Online 2018 MP 637.
Courts Observation and order
The bench taking note of the facts of the case remarked, "On perusal of the aforesaid order dated 13.04.2015, it reveals that the facts of the aforesaid case were a bit different as the in the aforesaid case writ appeal was filed after a delay of approximately 9 to 10 years and the initial order was passed on 07.05.2004, whereas the order in the review petition, which was filed in the year 2007 was passed on 18.03.2013 and in such circumstances, the Court has held that these two orders have been passed at two different stages,hence not acceptable."
The bench further observed, "So far as Rule 7(1) of Order 47 of CPC is concerned, it stipulates that an order of the Court rejecting the review application shall not be appealable. In the present appeal, it has been preferred not only against the order passed by the writ court but also against the order passed in the review petition, and thus, it is not a case where the writ appeal has been preferred only against the order of rejection passed in review petition, in such circumstances, even if the said order passed in review petition is also challenged by the appellant in this writ appeal, it cannot be said that it would render the writ appeal as not maintainable. This court is of the considered opinion that it would only serve the interest of justice if the appellant can also challenge the order of rejection of review petition in the appeal preferred against the original order, as three are occasions when the appellate court itself is of the opinion that the appellant could have raised the grounds raised in appeal, in a review petition. For these reasons, the decisions in the cases of Shankar Motiram Nale and Suseel Finance & Leasing Co., (supra) are of no avail to the respondent as the same are distinguishable."
As a result, it was held that the appeal was maintainable and the application for dismissal of appeal only on this ground that it has been preferred against two orders was hereby rejected.
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