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2005 DIGILAW 484 (UTT)

Ajeet Singh Patwa v. District Judge, Pithoragarh

2005-11-22

CYRIAC JOSEPH, PRAFULLA C.PANT

body2005
JUDGEMENT Cyriac Joseph, C.J. 1. This Special Appeal is filed against the judgment dated 21-07-2005 in Writ Petition No. 7553 of 2001 (MIS). As per the said judgment, the writ petition was dismissed by the learned Single Judge. 2. The Writ Petition was filed against an order dated 24-02-1995 (Annexure 9) passed by the District Judge, Pithoragarh and an order dated 1509-1990 (Annexure 7) passed by the Munsif, Pithoragarh. As per Annexure 7 order, the second respondent - Munsif Pithoragarh - decided the preliminary issue in Suit No. 7/83 holding that the Munsif Court had no jurisdiction to try the suit. Against the said order, the plaintiff filed a revision before the District Court, Pithoragarh as Civil Revision No.4 of 1990. The said revision was dismissed by the District Judge as per Annexure 9 judgment dated 24-02-1995. Challenging the order of the Munsif and the judgment of the District Judge, the plaintiff in the suit filed Writ Petition No. 11234 of 1995 in the High Court of Allahabad under Articles 226/227 of the Constitution of India. The said writ petition was transferred to the High Court of Uttaranchal and it was renumbered as Writ Petition No. 7553 of 2001 (M/S). After hearing the petitioner and the respondents, the writ petition was dismissed by the learned Single Judge on 21-07-2005. It is against the said judgment dated 21-07-2005 of the learned Single Judge that this special appeal has been filed. 3. Learned counsel for respondents Nos. 3 to 5 raised a preliminary objection that this special appeal is not maintainable in view of the provisions contained in Rule 5 of Chapter VIII of the Rules of Court 1952 issued by the Allahabad High Court which are applicable to the High Court of Uttaranchal. The preliminary objection is opposed by the learned counsel for the appeliant. 4. Rule 5 of Chapter VIII of the said Rules reads thus: "5. Special appeal. The preliminary objection is opposed by the learned counsel for the appeliant. 4. Rule 5 of Chapter VIII of the said Rules reads thus: "5. Special appeal. - An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act) of one Judge." It is clear from the above-quoted provisions that a special appeal shall not lie from an order passed by the Single Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment of a Court made in the exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution. The order impugned in this special appeai was passed by the Single Judge in the exercise of jurisdiction conferred by Article 226/227 of the Constitution of India in respect of a judgment of the District Court, Pithoragarh made in ,the exercise of jurisdiction under the Code of Civil Procedure. Hence, the preliminary objection raised by the learned counsel for respondents Nos. 3 to 5 is upheld. The special appeal is dismissed as not maintainable.