TMI Blog2013 (2) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... our of respondent Mr. Mool Chand Sharma. In the year 1995, three semi-permanent shops and one tin shed were constructed by Mr. P.S. Oberoi behind shop no.7, Kalyan Vas, Delhi which was initially allotted to Shri Arjun Das Khattar. Vide letter dated 10.4.1997, Under Secretary (Allotment), Land Building Department wrote to SSW-I, MSO Building, New Delhi to fix the license fee of the aforesaid three shops and a shed. In the letter it was stated that the aforesaid shop and shed had been allotted to Mr. Mool Chand Sharma and Mr. P.S. Oberoi. A copy of the aforesaid communication was endorsed to the respondent Mr. Mool Chand Sharma, though no letter of allotment was issued to him. In reply to the letter dated 10.4.1997, SSW-I intimated the license fee, but also stated that the license fee would be fixed by calling tender as per the procedure laid down by the Directorate of Estates, Ministry of Urban Development, New Delhi. Mr. Mool Chand Sharma filed W.P(C) No.4306/2000, seeking implementation of the letter dated 10.4.1997 by handing over possession of the aforesaid three shops and tin shed to him. He also sought declaration that he was the lawful licensee in respect of the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p for consideration is as to whether in view of the withdrawal of the earlier appeal filed by the appellants against the order dated 9.10.2002, a second appeal challenging the said order is maintainable or not. Admittedly, while withdrawing the earlier appeal, the appellants did not see any permission from the Court to file a fresh appeal against the order dated 9.10.2002, in the event of the review petition which they were proposing to file before the learned Single Judge being dismissed. The only liberty taken from the Court, while withdrawing the appeal, was to file a review application before the learned Single Judge. Order 23 Rule 1 of Civil Procedure Code, to the extent it is relevant for our purpose provides that where the plaintiff withdraws from a suit or part of a claim without the permission of the Court, he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. The provisions contained in Order 23 Rule 1 of the Civil Procedure Code equally apply to the appeals preferred in terms of the said Code. 5. In C.S. Agarwal Vs. State and Ors. [2011 VIII AD (Delhi) 265], a Division Bench of this Court, inter alia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant of Section 108 of the Government of India Act, made on or after the first day of February, one thousand nine hundred and twenty- nine in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our heirs or Successors in our or their Privy Council, as hereinafter provided. 8. The expression judgment‟ used in the Letters Patent came to be interpreted by the Supreme Court in Shah Babulal Khimji vs. Jayaben, AIR 1981 SC 1786 as under: 113. The concept o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided by the trial Judge against the defendant, the suit is not terminated buy continues and has to be tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affects a vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench. (3) Intermediary or interlocutory judgment -Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43, Rule 1 and have already been held by us in the judgments within the meaning of the Letters Patent and, therefore, appealable. There may also be interlocutory orders which are not corrected by Order 43, Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls is based on a serious misconception of the legal position. Xxxx 8. The test is that to be attained with the quality of judgment an order must decide directly and immediately a valuable right of a party. The impugned order does nto determine directly and immediately any valuable right of the appellant. The impugned order merely refuses to interfere with an earlier order. What effects adversely directly and immediately the rights of the appellant is the original order dated 30.9.90 which was sought to be reviewed. The application for review having been dismissed the appropriate remedy of the appellant was to have filed an appeal against the order dated 30.8.90. 11. Order 47 Rule 1 of Code of Civil Procedure gives a discretion to the Court, to review a judgment/ order in the following circumstances: (a) a new and important matter or evidence has been discovered, which, despite exercising due diligence, was not within the knowledge of the review applicant or could not be produced by him when the judgment or order was passed; (b) there is some mistake or error apparent on the face of the record; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for review is not maintainable. Thus, the view taken by the Supreme Court has been that when a Special Leave Petition is withdrawn with liberty to file review petition, another Special Leave Petition challenging the very same judgment is not maintainable. This is also the view taken by the Court that Special Leave Petitions against the order passed in the review petition would not be maintainable, in such circumstances. As a corollary, the subsequent appeal against the orders dated 9 th October, 2002 and 3rd November, 2006 is not maintainable. 13. The learned counsel for the appellant has placed reliance on Ghanshyam Dass and others Vs. Dominion of India Ors. [(1984) 3 SCC 46]; Kailash Vs. Nankhu Ors.[(2005) 4 SCC 480]; Sona Bala Bora and others vs. Jyotirindra Bhatacharjee [(2005) 4 SCC 501]; B.K. Narayana Pillai Vs. Parameswaran Pillai and another[(2001) SCC 712]; Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others [(2006) 4 SCC 385)]; and T. Madhava Kurup Vs. T.C. Madhava Kurup Vs. T.C. Madhava Kurup (dead) by Lrs. and others [(2006) 4 SCC 399]. However, none of these judgments is applicable to the issue under consideration and, therefore, reliance upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered an appeal against the order. The Apex Court further observed that even if it proceeds on the basis that the earlier appeal was an appeal against a decree, it would still be incompetent because the defendant/ appellant had not furnished the requisite stamps in respect of an appeal against a decree and therefore the said appeal would not be competent for want of payment of requisite court fee. The Supreme Court noted that yet another requirement for filing an appeal was to file a certified copy of the decree within a period of limitation and unless a certified copy of the decree was filed, an appeal would not be competent. It was also noticed by the Apex Court that the High Court was not aware of the defect in the appeal and did not intend to dispense with the filing of the certified copy. The Court was of the view that the appeal without certified copy of the decree being incompetent appeal, withdrawal of such an incompetent appeal will not in any way prejudice the rights of the parties to file a proper appeal if such a right is not otherwise lost by lapse of time or for any other valid reason. It was held that withdrawal of the earlier appeal which was incompetent and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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