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2012 (10) TMI 1041 - SC - Indian LawsMaintainability of an appeal by way of Special Leave under Article 136 of the Constitution against an order of the High Court after an earlier Special Leave Petition against the same order had been withdrawn - Held that - There is nothing in the decisions cited by the appellant to show that this Court has taken a view different from the view taken in Abhishek Malviya v. Additional Welfare Commissioner and Another (2008 (1) TMI 890 - SUPREME COURT) with regard to maintainability of an appeal by way of Special Leave under Article 136 of the Constitution against an order of the High Court after an earlier Special Leave Petition against the same order had been withdrawn without any liberty to file a fresh Special Leave Petition. Similarly there is nothing in the decisions cited by the appellant to show that this Court has taken a view that against the order of the High Court rejecting an application for review an appeal by way of Special Leave under Article 136 of the Constitution is maintainable. In the result we hold that the Civil Appeals are not maintainable and we accordingly dismiss the same
Issues:
1. Maintainability of Civil Appeals by way of Special Leave Petition against High Court orders. 2. Interpretation of Order XLVII Rule 7 of the Code of Civil Procedure, 1908. 3. Preclusion from challenging a High Court order by way of Special Leave to Appeal under Article 136 of the Constitution. Analysis: Issue 1: Maintainability of Civil Appeals by way of Special Leave Petition against High Court orders: The case involved appeals against the orders of the Bombay High Court at Goa. The respondent raised a preliminary issue regarding the maintainability of the Civil Appeals by way of Special Leave Petition. The appellant contended that the appeals were maintainable under Article 136 of the Constitution. However, the Court noted that the earlier Special Leave Petition filed by the appellant was dismissed as withdrawn with permission to pursue a remedy by way of review. As the appellant did not seek liberty to challenge the order afresh, the Court held that the appellant was precluded from challenging the High Court's order by way of Special Leave to Appeal under Article 136. Issue 2: Interpretation of Order XLVII Rule 7 of the Code of Civil Procedure, 1908: The respondent argued that the appeal against the order rejecting the Review Petition was not maintainable under Order XLVII Rule 7 of the CPC, which states that an order rejecting an application for review is not appealable. Citing previous judgments, the respondent contended that the principle of Order XLVII Rule 7 applies to appeals by way of Special Leave under Article 136 of the Constitution. The Court agreed with this interpretation and held that an appeal against the order rejecting a review application was not maintainable. Issue 3: Preclusion from challenging a High Court order by way of Special Leave to Appeal under Article 136 of the Constitution: The Court referred to the case of Abhishek Malviya v. Additional Welfare Commissioner and Another to emphasize that when a Special Leave Petition is dismissed as withdrawn without reserving liberty to file a fresh appeal or seek review, the order attains finality. The Court reiterated that such actions preclude a party from reagitating the issue through subsequent appeals. Therefore, in the present case, the Court held that the Civil Appeals were not maintainable due to the appellant's withdrawal of the earlier Special Leave Petition without seeking liberty to challenge the High Court's order. In conclusion, the Supreme Court dismissed the Civil Appeals, emphasizing that the appellant was precluded from challenging the High Court's orders by way of Special Leave to Appeal under Article 136 of the Constitution. The Court clarified that it did not express any opinion on the merits of the case or the actions of the Authority or the Municipal Council regarding the construction in question.
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