TARACHAND MAJHI Vs. LALIT PADHAN

JUDGEMENT

(1.) This writ appeal is filed by the unsuccessful Petitioner in W.P. (C) No. 13194 of 2009 who is the Opp. Party in the Election Petition No. 5 of 2007 before the Civil Judge (Junior Division), S. Rampur who has allowed the application of the Respondent herein to recount the ballots of polling booth Nos. 1, 2, 6, 10 & 11 which order is affirmed in the impugned order passed by the Learned Single Judge in dismissing the petition filed by the Appellant herein vide its Order Dated 20.11.2009 is challenged urging various legal grounds.

(2.) When this matter was listed for admission on 15.4.2010, Learned Counsel appearing on behalf of the Respondent raised the preliminary objection regarding the maintainability of this writ appeal by placing reliance upon the Full Bench decision of this Court in the case of Mohammed Saud and Ors. v. Dr. (Maj) Shaikh Mahfooz and Anr., 2008 2 OrissaLR 725 placing reliance upon paragraph 45 wherein the Full Bench of this Court having regard to the conflicting Division Bench Judgments of this Court with reference to Section 100-A of the Code of Civil Procedure as amended by Act 22 of 2002 has held that appeal against the Judgment/order of a Learned Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent is not available as it is held that no provision for filing an appeal to a Division Bench against the Judgment/decree/order of a Learned Single Judge has been made. In this view of the matter, the Learned Counsel for the Respondent contends that appeal against the order of the Learned Single Judge in view of the aforesaid Full Bench decision of this Court which has answered the reference holding that against the Judgment or order passed by a Learned Single Judge in view of Section 100-A of C.P.C. letters patent appeal is not provided, the appeal is not maintainable in law &, therefore, requested to dismiss this appeal on this count itself.

(3.) Learned Counsel appearing on behalf of the Appellant herein rebuts the said contention placing reliance on the very same Full Bench decision at paragraph 47 (3) wherein this Court after interpretation of Section 100-A & the various decisions of the Supreme Court with regard to jurisdiction of judicial review power of this Court under Articles 226 & 227 of the Constitution & also the remedy of appeal under Clause 10 of the Letters Patent read with Orissa High Court Order, 1948 held that no Letters Patent Appeal shall lie against Judgment/order passed by a Learned Single Judge in view of the amendment of the CPC by Amendment Act 22 of 2002 & further the Full Bench has examined the remedy of an aggrieved party keeping in view the decision of the Supreme Court in the case of Umaji Keshao Meshram and Ors. v. Smt. Radhika Bai and Anr., 1986 AIR(SC) 1272 and Anr. decision of the Supreme Court, namely, Kanhaiyalal and Ors. v. Factory Manager, Gwalilior Sugar & Co., 2001 9 SCC 609, wherein the Apex Court held that if, the Single Judge of a High Court in considering the question under Articles 226 & 227 does not state under which provision he has decided the matter & how the fads satisfied filing of petition both under the aforesaid articles of the Constitution & the petition so filed is dismissed on merit, the matter may be considered in proper perspective in appeal. It also further placed reliance upon various other decisions of the Supreme Court particularly the decision in the case of Surya Dev Rai v. Ram Ch. Rai, 2003 AIR(SC) 3044 wherein the Apex Court examined the power of the High Court under Articles 226 & 227 of the Constitution of India & the appeal power of a party & at paragraph 47 sub-para 3 while summing up the legal contentions answered the reference which reads thus: