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2017 DIGILAW 388 (ALL)

Mukund Swaroop v. Shobha Tomar

2017-01-31

SANGEETA CHANDRA, V.K.SHUKLA

body2017
JUDGMENT Ref: Civil Misc. Delay Condonation Application For the reasons stated in affidavit, which constitutes sufficient cause, filed in support of Delay Condonation Application, Application is allowed. Delay of 22 in filing Special Appeal is condoned. Special Appeal is treated to have been filed well within time. Ref: Special Appeal 2. Mukund Swaroop is before this Court assailing the validity of the interim order dated 2.12.2016 passed in Petition under Article 227 No.9546 of 2016 (Smt. Shobha Tomar and another vs. Mukund Swaroop and others). 3. On the matter being taken up today, Smt. Madhusudan Dikshit, Advocate has raised a preliminary objection with regard to the maintainability of the appeal in question by contending that proceedings in question has emanated out of an order of Civil Judge (Junior Division) in Misc. Case No.101 of 2016 and in exercise of authority under Article 227 such an interim order has been passed and as such the same is not at all maintainable. 4. Shri Amit Kumar Singh, Advocate on the other hand contended that facts of the present case clearly reflects that rightful order has been passed and on its face value, the appeal in question shall be entertained. 5. Before we deal with the subject, it would be worthwhile to look into the provisions of Chapter VIII Rule 5. 6. Special Appeal in question is provided for under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 and the same reads as follows: (i) Chapter VIII Rule 5 Rule 5 of Chapter VIII, as it stands at present, reads as follows: "5. 6. Special Appeal in question is provided for under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 and the same reads as follows: (i) Chapter VIII Rule 5 Rule 5 of Chapter VIII, as it stands at present, reads as follows: "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." 7. The provisions of Chapter VIII Rule 5 would go to show that an appeal lies, first and foremost, from a judgement. Rules 5 then proceeds to lay down the expected categories or exclusions where a special appeal will not be maintainable. The provisions of Chapter VIII Rule 5 would go to show that an appeal lies, first and foremost, from a judgement. Rules 5 then proceeds to lay down the expected categories or exclusions where a special appeal will not be maintainable. The exclusions, which have been specified in Rule 5, are: "(i) A judgment passed in the exercise of the appellate jurisdiction in respect of a decree or order made by a court subject to the superintendence of the Court; (ii) An order made in the exercise of revisional jurisdiction; (iii) An order made in the exercise of the power of superintendence; (iv) An order made in the exercise of criminal jurisdiction; (v) An order made in the exercise of jurisdiction conferred by Articles 226 or 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 Central Act, with respect to a matter contained in the State List or the Concurrent List to the Seventh Schedule of 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." 8. On the parameters of the aforementioned provisions, we have to see and examine as to whether the judgement in question i.e. being assailed before us, would fall within the scope and ambit of the exclusions which have been specified in Rule 5 of Chapter VIII. 9. A bare perusal of the exclusions quoted above would go to show that an order passed by 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 Central Act, with respect to a matter contained in the State List or the Concurrent List to the Seventh Schedule of the Constitution or of the Government or any authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act. 10. 10. Bare perusal of the record, in the present case, goes to show that the order in question has been passed by the Court and same has been subjected to challenge before this Court in exercise of powers conferred under Article 227 i.e. power of its superintendence. In such a situation and in this background, special appeal in question is not at all maintainable as specially order has been made by Single judge in exercise of jurisdiction conferred by Article 227 of the Constitution of India in respect of judgement that has been passed by the Court below, in view of this, once there is statutory provision that bars us to entertain the appeal in question, then present Special Appeal in question is not at all entertained and the same is dismissed as not maintainable.