Amendment status not verified — confirm the current text below against the official source.
Writ appeal against an order- Maintainability of-Full Bench decision .- (a) [per majority judgment by four Judges (S.Samvatsar J. con- tra)].-The maintainability of a writ appeal from an order of the learned Single Judge would depend upon many an aspect and cannot be put into a traitjacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given and t.he jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is as ail to the order emerging from the Inferior Tribunal or Subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India It would depend upon the real nature oft.he order passed by the learned Single Judge. To elaborate: whether the learned Single Judge has exercised his jurisdiction under Article 226 or under Article 227 or both would depend upon various aspects and many a facet as has been empha ized in the aforequoted deciaicns of th Apex Court. The pleadings, as hos be n indicated herei.nabove, also (HC)391 HIGH COURT (APPEAL TO DB.) ADHINIYAM, 2005 emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes lo be \lllder Article 227 of the Constitution of India. Phraseology used in eiercise of original jurisdiction under Article 226 of the Constitution in S ction 2 of the Act cannot be given a restrict? and con trued meaning because an order passed in a writ petition can tantamount to an order under Articles 226 nnd 227 of the Constitution of India and it would depend upon the real nature of the order passed by the learned single Judge. To elaborate: 'Whether the learned single Judge has exercised hi jurisdiction under Article 226 or und r Article 227 or both would depend upon various aspects. AB bas be n hold in the case of Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044 a writ of certiorari can be issued under Article 226 of the Constitution against an order of a tribunal or an order passed by the subordinate Court. In quintessentiality, it caanot be put in a strait- [ocket formula that any order of the learned single Judge that deals with an order arising from an inferior tribunal or the subordinate Court is an order under Article 227 of the Constitution oflndia and not an order under Article 226 of the Constitution. It would not be an overempha i to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner end they can coinside, co-exit, over-lap or imbricate. In this context it is apt to note that there may be cases where the learned single Judge may feel disposed or inclined to issue a writ to do full and complete ju tice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. lt will depend upon factual matrix of the case. Dr. Jaideu Sidda u. Jtuprahash. Siddha, AIR 2007 M.P. 269 • 2007(3) MPLJ 59/S • 2007(5) MPHT 388 = 2007(3) JLJ 151 = 2007(2) MPJR 361 (FB). (c) Limeline other deci ions of M.P. High Court.· ( 1) Full B nch in the case of Dr. Jtudeu Sidda u. Jaiprakash Siddha, AlR 2007 M.P. 269 = 2007(3) M.PLJ 595 = 2007(5) MPHT 388 = 2007(3) JLJ 151 = 2007(2) MPJR 361 (FB), hold, that the law laid down in the cases of Lakhan Lal Sonkar v. Gun Carriage Factory, 2007 (1) MPHT 335 (DB}; St.ate of M.P. v, M?S. Wakankar, 2007(1) MPW 99; and Smt, Shiva Dubey (Jhira} v. Sumit Ranjan Dubey, 2006(4) MPHT 420 (DB) nre the law lay down the law correctly being in con onance and accord of the decision of the Apex Court. (2) Full Bench in the case of Dr. Jaideu Sidda u. Jazprakash Siddha, AIR 2007 M.P. 269 = 2007(3) MPLJ 595 = 2007(5) MPHT 388 = 2007(3) JLJ 151 = 2007(2) MPJR 361 (FB), bas overurled the judgment of Division Bench of M.P. High Court in the case of M/s. Rama and Co. v. State of M.P., 2007(8) MPLJ 164 • 2007(3) MPIIT 325 • 2007(3) JLJ 220 • 2007(2) MPJR 229 (DB) and held that even if the Single Judge hearing a petition under Article 226 of the Constitution against the ordeT passed by the Court or Tribunal, a writ appeal lies. Before the Full Bench could deliver the aforesaid judgment, the judgment of Division Bench in t.he Rama and Co. (suprn) was challenged before the upreme Court in SLP lllGH COURT (APPEAL TO DBJ ADHINIYAM, 2005 UIC)390 (vii) The decision rendered in Rama and Co. u. State of M.P., 2007(3) MPLJ 154 = 2007(3) MPHT 325 = 2007?ll) MPJR 229, i binding upon the parties inter se. (viii) The decisions rendered by the Apex Court in the context of appeal under Letters Patent as regards maintainability of an appeal would govern the field pertaining to maintainability of appeal preferred under section 2 of the 2005 Adhiniyam. (ix) The view taken by the Full Bench in Dr. Jatdeu Siddha u. Jaiprakash Siddha, 2007(3) MPLl 595 (FB) = AIR 2007 MP 269 = 2007(6) MPHT 388 = 2007(2) l\.1PJR 361 (FB) cannot be treated to have been impliedly overruled due to dismiss ion of the Special Leave Petition preferred against the order rendered in the case of Rama and Co. (supra). (x) The law laid down in the case of Dr. Jaideu Siddha v. Jaiprokash Siddha, 2007(3) MPLJ 595 CFB)=2007(2) MPJR 361 (FB), holds the field and the principl laid down therein will have full applicability. [per . Samvat ar, J].-The object for which the reference wa made appears to be that the Division Bench could not declare a judgment rendered by the Thr e.Judge as per incuriam and, hence the matte was referred to the Larger Bench. This Court now cannot say that the judgment rendered by the Apex Court is not applicable on any reason particularly when the judgment in the SLP is tho solitary judgment of the Apex Court on the provisions of the Adhiniyam. Earlier, there was no occasion for the Apex Court to examine the question of maintainability in the light of the provisions of the Adhinlyam which came into force with effect from 5th April,