Full Judgment Text
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CASE NO.:
Appeal (civil) 5023 of 2006
PETITIONER:
Shiv Charan Singh
RESPONDENT:
The State of Punjab & Ors.
DATE OF JUDGMENT: 17/11/2006
BENCH:
ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 26765 of 2005)
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the order passed by a
Division Bench of the Punjab and Haryana High Court
dismissing the application for review filed in respect of the
order in CWP No.17615 of 2001 which was dismissed on
12.8.2005. The said writ petition was dismissed on the ground
that the writ petitioner was absent for about three years. The
High Court found the writ petitioner to be a habitual absentee
and, therefore, felt that he did not deserve any relief in the
quantum of punishment. It is to be noted that while issuing
notice on 6.11.2001 the following order had been passed by
the High Court:
"Learned counsel for the petitioner at the time
of arguments stated that the petitioner has put
in ten years of service and he has been deprived
of the retiral benefits in view of the impugned
order. He confines the prayer in the writ petition
only to the quantum of punishment."
Learned counsel for the appellant submitted that the
High Court is not right in holding that the review petition was
not entertainable in view of the materials which were placed
for consideration. Those materials clearly show that the High
Court did not take note of the correct factual position while
dismissing the writ petition.
Learned counsel for the respondents submitted that the
High Court has rightly held that the review petition was not
maintainable.
Challenge in this appeal is only to the order passed in the
review application. Such an appeal is not maintainable.
In Shanker Motiram Nale v. Shiolalsing Gannusing
Rajput [(1994) 2 SCC 753] it was observed as follows:
"The appeal is obviously incompetent. It
is against an order of a Division Bench of the
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High Court rejecting the application for review
of a judgment and decree passed by a learned
Single Judge, who seems to have retired in the
meantime. It is not against the basic
judgment. Order 47 Rule 7 of CPC bars an
appeal against the order of the court rejecting
the review. On this basis, we reject the appeal.
No cost.
I.A. No.1/93 (Application for
substitution).
No orders are necessary in view of the
rejection of the appeal."
The position has been re-iterated in Suseel Finance &
Leasing Co. v. M. Lata and Ors. [(2004) 13 SCC 675] and M.N.
Haider and Ors. v. Kendriya Vidyalaya Sangathan and Ors.
[(2004) 13 SCC 677].
It is stated by learned counsel for the appellant that the
basic order dated 20.8.2004 passed by the High Court has
been challenged by filing a special leave petition on 9.10.2006.
However, dismissal of this present appeal shall not stand on
the way of consideration of the Special Leave Petition stated to
have been filed on 9.10.2006. The same shall be dealt with in
accordance with law.
The appeal is dismissed. No costs.