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[Cites 3, Cited by 0]

Madhya Pradesh High Court

Union Of India vs Ramlakhan Dohare on 26 October, 2016

                       WA-410-2016
              (UNION OF INDIA Vs RAMLAKHAN DOHARE)


26-10-2016

Shri Deepak Rawal, learned counsel for the for the
Appellants/State.
Shri Amit Dube, learned counsel for the respondent.

Heard on I.A. No.6228/2016, an application for dismissal of the appeal on being not maintainable. Learned counsel for the respondent has submitted that writ petition no.2045/11 of the respondent was allowed vide order dated 11.08.2015, against the aforesaid order WA No.471/2015 was filed and in that writ appeal out of 5 charges learned writ Court while passing the order dated 11.08.2015 has not considered the other two charges which are serious in nature and therefore the writ appeal was dismissed as withdrawn on 25.01.2016 with a liberty to file review petition Against the aforesaid order on 27.02.2016, a review petition no. 90/2016 filed on 07/09/2016 was dismissed on the ground of limitation. After dismissal of review petition the appellant has filed the present writ appeal against order dated 11.08.2015, passed in W.P. No.2045/2011 as well as order dated 07.09.2016, passed in Review Petition No.90/16.

In the matter of Vinod Kapoor vs. State of Goa and ors.AIR 2012 SC 3722 and Great Galleon Ltd. and others vs. Union of India 2009 (2) MPLJ 609. the question of law involved in this writ appeal has been considered by Hon'ble Apex Court in para no.8 and 10 of the judgment of Vinod Kapoor (Supra) which reads as under:-

“8. The question that we have to decide is whether the appeal will lie against the order dated 29.01.2000 of the High Court dismissing Writ Petition No. 253 of 1999 when an earlier Special Leave Petition against the said order dated 29.01.2000 of the High Court was filed by the appellant but was withdrawn with the permission of this Court to pursue his remedy by way of review against the said order dated 29.01.2000 of the High Court. As the appellant has withdrawn the Special Leave to Appeal against the order dated 29.01.2000 of the High Court with permission to pursue his remedy by way of view instead and had not taken the liberty from this Court to challenge the order dated 29.01.2000 afresh by way of special leave in case he did not get relief in the review application, he is precluded from challenging the order dated 29.01.2000 of the High Court by way of Special Leave to Appeal under Article 136of the Constitution.
10. M o r e o v e r , o n t h e H i g h C o u r t rejecting the application for review of the appellant, the order rejecting the application for review is not appealable by virtue of the principle in Order XLVII, Rule 7 of the CPC. In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput; Suseel Finance & Leasing Co. v. M. Lata and Others and M.N. Haider and Others v.

Kendriya Vidyalaya Sangathan and Others (supra) cited by the learned counsel for respondent No.8, this Court has consistently held that an appeal by way of Special Leave Petition under Article 136 of the Constitution is not maintainable against the order rejecting an application for review in view of the provisions of Order XLVII, Rule 7 of the CPC.” Similar view has been taken by the Full Bench of this Court on 19.02.2009, in the case of Great Galleon Ltd. & Ors (Supra); para 42 reads as under:

“42. In view of the aforesaid analysis, we have not hesitation in our mind that the present writ appeal is not maintainable inasmuch as the order impugned was assailed in W.A. No.718/2006 which was dismissed as withdrawn on the basis of an application filed by one of the appellants which was later on concurred by the learned counsel for other appellant making a submission that it has been rendered infructuous inasmuch as the amount had already been deposited. That apart, we have referred to the nature of pleadings. Ergo, the inevitable result is the dismissal of the writ appeal which we direct. We cannot refrain ourselves from reiterating what we have said earlier that filing of the present writ appeal is an abuse of the process of Court and, therefore, we decline to entertain the writ appeal.” First writ appeal was dismissed as withdrawn, without any liberty to approach again against the order passed in writ petition and therefore, after dismissal of the review petition the second writ appeal is not maintainable. On due consideration of the aforesaid, I.A. No. 6228/2016 is allowed by holding that present appeal is not maintainable, accordingly, Writ Appeal No. 410/16, is dismissed as not maintainable.

  (P.K. JAISWAL)                      (VIRENDER SINGH)
      JUDGE                                 JUDGE