IQBAL AHMAD Vs. MOHD KHALIL

JUDGEMENT

(1.) THIS special appeal questions the correctness of the entire proceedings undertaken by the learned Single Judge arising out of the impugned order dated 1st of August, 2008 which was passed on a Misc. Clarification Application filed in a finally disposed of writ petition.

(2.) SRI Umesh Chandra, learned Senior Counsel assisted by Sri S.M. Rayekwar, for the appellant contends that once the order passed by the learned Single Judge is without jurisdiction, as the application on which such an order was passed was itself not maintainable, then in that event a special appeal can be entertained by this court as it is a separate proceeding altogether, and cannot be said to be arising out of the judgment of the learned Single Judge. He has relied on the decision in the case of State Of Uttar Pradesh vs Brahma Datt Sharma and another, 1987 2 SCC 179 (Para 10).

(3.) SRI Umesh Chandra then invited the attention of the court to Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 to advance his submissions to the same effect urging, that in such extraordinary situations even otherwise an extraordinary remedy had been provided by entertaining a special appeal by a division bench of this court in the case of U.P. Sunni Central Waqf Board and another Vs. Raja Khan,2011 29 LCD 64 where one of us (Justice A.P. Sahi) was a member. He therefore submits that in view of the aforesaid position and the language of Chapter VIII Rule 5 where there is a clear abuse of process of court and the order of the learned Single Judge is without jurisdiction, a special appeal would be maintainable. He further informs the court that the aforesaid decision of the division bench of the High Court has been affirmed by the Apex Court in Raja Khan Vs. U.P. Sunni Central Waqf Board and another, 2011 29 LCD 67.