# Mohd. Hashim v. Board of Madarsa Education U.P. and another - **Citation:** (2008) 2 ILRA 570 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2008-05-26 - **Case number:** Special Appeal No. 696 of 2008 - **Bench:** S.P. Mehrotra, Arun Tandon - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-hashim-v-board-of-madarsa-education-u-p-and-another-41225 - **Pages:** 2 ## Headnote Motor Vehicle Act 1939-Section 1102(A)- Section 170 of M.V. Act 1988 read with Section 96 of Old Act (149(2) of new Act)-maintainability of appeal-appeal by insurance Company-no permission granted to contest the case-whether the appeal maintainable-held-"yes" where breach of policy found-appeal cannot be denied on technicalities-from perusal of records/ the policy no extra premium given-Company has limited liability to the extent of Rs.1,50,000/- already deposited-direction to deposit the amount of interest within fortnightmatter remitted back to Tribunal for realisation of remaining amount from owner of vehicle. Held: Para 4 & 5 We are of the view that the stand of insurance company is correct to say that ## Text 570 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 petitioner accordingly, preferably within three months from the date a certified copy of this order is filed before the authority concerned. On the delayed payment of gratuity/retiral benefits, petitioner shall be entitled to 6% interest from the date, it was due till the date of actual payment. 20 The special appeal is allowed subject to the observations made above. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 26.05.2008 BEFORE THE HON'BLE S.P. MEHROTRA, J. THE HON'BLE ARUN TANDON, J. Special Appeal No. 696 of 2008 Mohd. Hashim ...Appellant Versus Board of Madarsa Education and another ...Respondents Counsel for the Appellant: Sri Ch. N.A. Khan Sri M.A. Khan Counsel for the Respondents: S.C. High Court Rules-Chapter VIII Rule-5Special Appeal-Maintainability-No order passed on Stay Application-except grant of time for counter affidavit-argument that refusal to grant interim protection in the garb of time for counter-amount to judgment-held-wholly misconceivedSpecial Appeal not maintainable. Held: Para 8 In the present case, there is no judgement whereby the petitionerappellant has been aggrieved and, therefore, the present Special Appeal is not maintainable. (Delivered by Hon'ble S.P. Mehrotra, J.) 1. The present Special Appeal has been filed against an order dated 13-52008 passed by the learned Single Judge in Civil Misc. Writ Petition No. 23990 of 2008, whereby time for filing Counter Affidavit and Rejoinder Affidavit in the Writ Petition has been granted and the case has been directed to be listed after the expiry of the period mentioned in the said order. 2. No order appears to have been passed on the Stay Application filed along with the Writ Petition. 3. The grievance of the petitionerappellant is that the order dated 13-5-2008 amounts to rejection of the prayer for stay made in the Stay Application accompanying the Writ Petition, and the same has resulted in making the Writ Petition infructuous. 4. Sri M.A. Khan, learned counsel for the petitioner-appellant submits that the order dated 13-5-2008 amounts to rejection of the prayer for stay made in the Stay Application accompanying the Writ Petition, and, therefore, the Special Appeal is maintainable against the said order. 5. Having considered the submissions made by the learned counsel for the petitioner-appellant, we find ourselves unable to accept the same. 6. No order has been passed on the Stay Application accompanying the Writ Petition either granting or refusing to 2 All] Mohd. Hashim V. Board of Madarsa Education U.P. and another 571 grant the stay order. By the order dated 13-5-2008, the learned Single Judge has only granted time for filing Counter Affidavit and Rejoinder Affidavit, and the petitioner-appellant cannot possibly be aggrieved by the said order. 7. Under Chapter VIII, Rule 5 of the Rules of the Court, 1952, Special Appeal lies against a "judgement" passed by a learned Single Judge. 8. In the present case, there is no judgement whereby the petitionerappellant has been aggrieved and, therefore, the present Special Appeal is not maintainable. 9. Sri M.A. Khan, learned counsel for the petitioner-appellant submits that the examinations are scheduled to be held with effect from 31-5-2008. 10. He further submits that at the time of filing of the Writ Petition, the Examination- Schedule had not been announced and therefore, in paragraph 29 of the Writ Petition, it was, inter-alia, stated that the examinations were expected to be held in the last week of May, 2008. 11. It is submitted that the Examination-Schedule having now been announced, the fate of 200 students who have submitted their examination form through the institution in question, would be adversely affected. 12. It is open to the petitionerappellant to move appropriate application in this regard before the learned Single Judge. We are not expressing any opinion on the merits of any such application. 13. Subject to the above observations, the Special Appeal is dismissed as not maintainable. Appeal dismissed. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 17.07.2008 BEFORE THE HON'BLE AMITAVA LALA, J. THE HON'BLE A.P. SAHI, J. First Appeal From Order No. 1130 of 1988 National Insurance Co. Ltd. ...Appellant Versus. Smt. Reeta Porwal & others ...Respondents Counsel for the Appellant: Sri Kuldeep Shankar Amist. Counsel for the Respondents: Sri R.K.Porwal Sri. Sanjay Ratan Sri. P. Srivastava. Motor Vehicle Act 1939-Section 1102(A)- Section 170 of M.V. Act 1988 read with Section 96 of Old Act (149(2) of new Act)-maintainability of appeal-appeal by insurance Company-no permission granted to contest the case-whether the appeal maintainable-held-"yes" where breach of policy found-appeal cannot be denied on technicalities-from perusal of records/ the policy no extra premium given-Company has limited liability to the extent of Rs.1,50,000/- already deposited-direction to deposit the amount of interest within fortnightmatter remitted back to Tribunal for realisation of remaining amount from owner of vehicle. Held: Para 4 & 5 We are of the view that the stand of insurance company is correct to say that