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2008 DIGILAW 1149 (ALL)

Mohd. Hashim v. Board of Madarsa Education

2008-05-26

ARUN TANDON, S.P.MEHROTRA

body2008
ORDER : S.P. Mehrotra, Arun Tandon, JJ. The present special appeal has been filed against an order dated 13.5.2008 passed by the learned single Judge in Civil Misc. Writ Petition No. 23990 of 2008, whereby time for filing counter-affidavit and rejoinder-affidavit in the writ petition has been granted and the case has been directed to be listed after the expiry of the period mentioned in the said order. 2. No order appears to have been passed on the stay application filed alongwith the writ petition. 3. The grievance of the petitioner-appellant is that the order dated 13.5.2008 amounts to rejection of the prayer for stay made in the stay application accompanying the writ petition, and the same has resulted in making the writ petition infructuous. 4. Sri M.A. Khan, learned Counsel for the petitioner-appellant submits that the order dated 13.5.2008 amounts to rejection of the prayer for stay made in the stay application accompanying the writ petition, and, therefore, the special appeal is maintainable against the said order. 5. Having considered the submissions made by the learned Counsel for the petitioner-appellant, we find ourselves unable to accept the same. 6. No order has been passed on the stay application accompanying the writ petition either granting or refusing to grant the stay order. By the order dated 13.5.2008, the learned single Judge has only granted time fore filing counter-affidavit and rejoinder-affidavit, and the petitioner-appellant cannot possibly be aggrieved by the said order. 7. Under Chapter VIII, Rule 5 of the Rules of the Court, 1952, special appeal lies against a "judgment" passed by a learned single Judge. 8. In the present case, there is no judgment whereby the petitioner-appellant has been aggrieved and, therefore, the present special appeal is not maintainable. 9. Sri M.A. Khan, learned Counsel for the petitioner-appellant submits that the examinations are scheduled to be held with effect from 31.5.2008. 10. He further submits that at the time of filing of the writ petition, the Examination-Schedule had not been announced and therefore, in paragraph 29 of the writ petition, it was, inter alia, stated that the examinations were expected to be held in the last week of May, 2008. 11. It is submitted that the Examination-Schedule having now been announced, the fate of 200 students who have submitted their examination form through the institution in question, would be adversely affected. 12. 11. It is submitted that the Examination-Schedule having now been announced, the fate of 200 students who have submitted their examination form through the institution in question, would be adversely affected. 12. It is open to the petitioner-appellant to move appropriate application in this regard before the learned single Judge. 13. We are not expressing any opinion on the merits of any such application. 14. Subject to the above observations, the special appeal is dismissed as not maintainable.