STATE OF U P Vs. RAM PRASAD

JUDGEMENT

(1.) AGAINST the judgment of a learned Single Judge, dated 6-5-1993, the appellant had filed a special appeal before a Division Bench of this Court. But later on he moved an application for withdrawing the appeal, on which following order was passed: "in this special appeal an application accompanied by an affidavit has been moved for withdrawal of the special appeal as the appellant does not want to further prosecute the special appeal. The special appeal is accordingly dismissed, as withdrawn. The stay order, dated 19th August, 1993 is discharged. A certified copy of this order shall be given to the learned counsel for the parties within 48 hours on payment of usual charges. Sd/ - Sd/- 8-2-1994" It appears that the appellant also filed special leave petition in Hon'ble Supreme Court against the aforesaid judgment of learned Single Judge which was dismissed on 6th May, 1993 by the following order: "delay condoned. In view of the fact that the petitioners had not disclosed in the memo of the petition that they had filed an appeal against the impugned judgment, before the Division Bench of the High Court, which was later withdrawn by them, we are not inclined to interfere in this matter under Article 186 of the Constitution. The petition is dismissed. The petitioners, if so advised, may approach the High Court. " Thereafter the appellant filed second special appeal against the same judgment of learned Single Judge along with an application under Section 5 of Indian Limitation Act for condonation of delay. Delay has been condoned.

(2.) THE first special appeal was withdrawn by the appellant without any permission to file special appeal afresh. THErefore, in view of the law laid down by Hon'ble Supreme Court in Sarguja Transport Service v. State Trans port Appellate Tribunal, Gwalior, AIR 1987 SC page 88 second special appeal will not be maintainable.