# Ram Naresh Singh v. Estate of Late Smt. Maiki & Ors

- **Citation:** (2014) 3 ILRA 1431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-03
- **Case number:** Special Appeal No. 716 of 2014
- **Bench:** Amreshwar Pratap Sahi, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-naresh-singh-v-estate-of-late-smt-maiki-ors-43030
- **Pages:** 4

## Headnote

High Court Rules, chapter-VIII, Rules-5Special Appeal-against the judgment of
Single
Judge-exercising
Appellate
power-in testamentary case-in view of
Full Bench decision of Sheet Guptaspecial appeal -held-not maintainable.
Held: Para-15
We are, therefore, of the clear view that
the present Special Appeal is barred in
view of the Full Bench decision in the
case of Sheet Gupta (supra), and the
report of the Stamp Reporter has to be
upheld.
Case Law discussed:
AIR 1974 SC 2048; AIR 2008 SC 1012; 2010
(28) LCD 1045.

## Text

3 All].
 Ram Naresh Singh Vs. Estate of Late Smt. Maiki & Ors.
1431
Vehicles Act against an award passed by
the Motor Accidents Claims Tribunal and
further in sub-section (2) of Section 173
of the Motor Vehicles Act provides that
no appeal shall lie against any award of a
Claims Tribunal, if the amount is less than
ten thousand rupees, so the revision filed
by the revisionist thereby challenging the
award dated 5.2.2010 passed by Motor
Accident Claims Tribunal/ Additional
Distrct
Judge,
Balrampur
is
not
maintainable
(
see
also
Shipping
Corporation of India Ltd. v. Machado
Brothers and others AIR 2004 SC 2093)
13. So far as the law cited by learned
counsel for the appellant in support of his
argument of a Full Bench of this Court in
the case of Kamla Yadav ( supra) is
concerned, the same is not applicable in
the facts and circumstances of the case as
in the said matter this Court has held that if
any order is passed by Motor Accidents
Claims Tribunal during adjudication of the
claim petition then the same is revisable
under Section 151 of Code of Civil
Procedure as the Tribunal falls within the
scope and definition of word" Court".
14. For the foregoing reasons, the
revision lacks merits and is dismissed .
15. No order as to cost.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.12.2014
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.
Special Appeal No. 716 of 2014
alongwith Special Appeal No. 717 of 2014
Ram Naresh Singh
 ...Appellant
Versus
Estate of Late Smt. Maiki & Ors.
...Respondents
Counsel for the Appellant:
Sri A.P. Singh
Counsel for the Respondents:
Sri Prashant Singh Gaur
High Court Rules, chapter-VIII, Rules-5Special Appeal-against the judgment of
Single
Judge-exercising
Appellate
power-in testamentary case-in view of
Full Bench decision of Sheet Guptaspecial appeal -held-not maintainable.
Held: Para-15
We are, therefore, of the clear view that
the present Special Appeal is barred in
view of the Full Bench decision in the
case of Sheet Gupta (supra), and the
report of the Stamp Reporter has to be
upheld.
Case Law discussed:
AIR 1974 SC 2048; AIR 2008 SC 1012; 2010
(28) LCD 1045.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. These two Appeals arise out of a
common judgment rendered by the learned
single Judge in First Appeal No.186 of 2013
and First Appeal No.187 of 2013 that arose
out of orders passed for grant of letters of
administration under the provisions of
Indian Succession Act, 1925.
2. The learned District Judge, Lucknow,
granted letters of administration in favour of
the appellant in relation to the estate of Late
Smt. Maiki and others. Two sets of persons
namely Chhote Lal on the one hand and
Master and Jangali on the other filed
applications for setting aside and revoking the
letters of administration dated 6.1.1997.
1432
 INDIAN LAW REPORTS ALLAHABAD SERIES
3. The learned District Judge
allowed the said applications and revoked
the letters of administration vide order
dated 16.11.2013.
4. The learned single Judge, before
whom the two first appeals were filed
before this Court, after having noticed the
arguments, particularly in relation to the
powers of revocation under Section 263
of the Indian Succession Act, 1925,
assessed the rival contentions and came to
the conclusion that the order of the
learned District Judge did not require any
interference
and
the
appeals
were,
accordingly, dismissed. It is this judgment
dated 19.9.2014 rendered by the learned
single Judge of this Court which is under
challenge in the present Special Appeals
under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952.
5. The Stamp Reporter vide his
report dated 28.11.2014 has submitted a
report that the Special Appeals against the
judgment arising out of such proceedings
are not maintainable.
6. Sri A.P. Singh, learned Counsel
for the appellants, submits that the
aforesaid report of the Stamp Reporter is
erroneous and he has relied on two
decisions to advance his submissions. The
first decision is in the case of Smt. Asha
Devi Vs. Dukhi Sao and another, AIR
1974 SC 2048. The second decision is in
the case of Gaudia Mission Vs. Shobha
Bose and another, AIR 2008 SC 1012. On
the strength of these decisions, Sri Singh
submits that the Apex Court has held that
a Letters Patent Appeal or a Special
Appeal against the judgment of a learned
single Judge of the High Court would be
maintainable and in the instant case would
amenable to the jurisdiction of Special
Appeals under Chapter VIII Rule 5 of the
Allahabad High Court Rules.
7. He submits that in both the above
noted decisions, the matter was remitted
back to the Division Bench of the High
Court to decide the case on merits. Sri
Singh submits by placing reliance on the
said judgments that a regular appeal is
maintainable in such proceedings keeping
in view the provisions of Section 384 of
the Indian Succession Act, 1925.
8. Opposing the said arguments,
learned Counsel for the respondents Sri
Gaur has invited the attention of the Court
to the provisions of Chapter VIII Rule 5
and has heavily relied upon on the Full
Bench decision of this Court in the case of
Sheet Gupta Vs. State of U.P. And others,
2010 (28) LCD 1045, to contend that a
Special Appeal against the judgment of a
learned single Judge in the exercise of
appellate jurisdiction in respect of a
decree or order made by a Court subject
to the superintendence of the Court is
clearly barred.
9. Chapter VIII Rule 5 is extracted
herein below for ready reference:-
"5. Special appeal.-- An appeal shall
lie to the Court from a judgment (not
being a judgment passed in the exercise of
Appellate Jurisdiction in respect of a
decree or order made by a Court subject
to the Superintendence of the Court and
not being an order made in the exercise of
revisional jurisdiction or in the exercise of
its power of Superintendence or in the
exercise of criminal jurisdiction [or in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution in respect of any judgment,
order or award (a) of a tribunal, Court or
3 All].
 Ram Naresh Singh Vs. Estate of Late Smt. Maiki & Ors.
1433
statutory arbitrator made or purported to
be made in the exercise or purported
exercise of jurisdiction under any Uttar
Pradesh Act or under any Central Act,
with respect to any of the matters
enumerated in the State List or the
Concurrent List in the Seventh Schedule
to the Constitution or (b) of the
Government or any Officer or authority,
made or purported to be made in the
exercise
or
purported
exercise
of
Appellate or Revisional Jurisdiction under
any such Act] of one Judge.]"
10. A perusal thereof would clearly
indicate that the exact bar as spelled out
therein as involved herein, was not the
subject matter of consideration in any of
the decisions of the Apex Court which
have been relied upon by the learned
Counsel for the appellant. There was no
issue
framed
in
relation
to
the
maintainability of a Special Appeal under
Chapter VIII Rule 5 and both judgments
have proceeded on a presumption and
undisputed position before the Court as if a
Special Appeal was maintainable against
any judgment of a learned single Judge.
11. Secondly, it is to be noted that a
Special Appeal is provided against the
judgment of a learned single Judge of this
Court if a judgment is rendered in the
exercise of original jurisdiction by the
High Court and not in an appellate
jurisdiction.
An
order
passed
in
testamentary proceedings in the original
jurisdiction
of
the
High
Court
is
appealable under Chapter VIII Rule 5 but
an order passed in appeal regularly
instituted before the High Court against
the order of a District Judge would not be
further appealable in view of the bar
contained under Chapter VIII Rule 5 of
the Court.
12. This position has been clearly
explained in the Full Bench judgment and
paragraph No.14 thereof is extracted
hereunder which is clearly binding on us:-
"14. Having given our anxious
consideration to the various plea raised by
the learned counsel for the parties, we
find that from the perusal of Chapter VIII
Rule 5 of the Rules a special appeal shall
lie before this Court from the judgment
passed by one Judge of the Court.
However, such special appeal will not lie
in the following circumstances:
1.The judgment passed by one Judge
in the exercise of appellate jurisdiction, in
respect of a decree or order made by a
Court subject to the Superintendence of
the Court;
2.the order made by one Judge in the
exercise of revisional jurisdiction;
3.the order made by one Judge in the
exercise of the power of Superintendence
of the High Court;
4.the order made by one Judge in the
exercise of criminal jurisdiction;
5.the order made by one Judge in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution of India in respect of any
judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator
made or purported to be made in the
exercise
or
purported
exercise
of
jurisdiction under any Uttar Pradesh Act
or under any Central Act, with respect to
any of the matters enumerated in the State
List or the Concurrent List in the Seventh
Schedule to the Constitution of India;
6.the order made by one Judge in the
exercise of jurisdiction conferred by
Article 226 or 227 of the Constitution of
1434
 INDIAN LAW REPORTS ALLAHABAD SERIES
India in respect of any judgment, order or
award of
(i) the Government or
(ii) any officer or
(iii) authority,
made or purported to be made in the
exercise or purported exercise of appellate
or revisional jurisdiction under any such
Act, i.e. under any Uttar Pradesh Act or
under any Central Act, with respect to any
of the matters enumerated in the State List
or the Concurrent List in the Seventh
Schedule to the Constitution of India."
13. It is true that the judgments,
which have been relied upon by Sri Singh
for the appellants, have not been referred
to in the Full Bench judgment in the case
of Sheet Gupta (supra) but in our opinion
the issue of maintainability of a Special
Appeal was not involved either in the case
of Asha Devi (supra) or Gaudia Mission
(supra) which may have any impact on
the Full Bench judgment in the case of
Sheet Gupta (supra). Thus, even if the
same have not been noticed in the Full
Bench decision referred to herein above,
it is of no consequence, inasmuch as, as
noted above, the issues in both matters
were different.
14. To clarify it may be stated that
the judgments of the Apex Court that
have been relied upon by the learned
Counsel for the appellants involved the
issue of the scope of appellate powers as
to whether the same powers are available
when a concurrent jurisdiction is being
exercise keeping in view the provisions of
Section 96 and Section 100 of the Civil
Procedure Code. The question was as to
whether in a letters patent appeal or a
Special Appeal, the powers of the Court
are limited only to substantial questions of
law or the powers are co-extensive as that
of the subordinate court that had decided
the matter. It is in this context that the
aforesaid two decisions were rendered
and they proceeded on the assumption of
maintainability, and also contention of the
parties that there was no dispute relating
to the maintainability of a Special Appeal.
The said decisions, therefore, in our
opinion, do not come to the aid of the
appellants for maintaining the present
Special Appeal.
15. We are, therefore, of the clear
view that the present Special Appeal is
barred in view of the Full Bench decision
in the case of Sheet Gupta (supra), and the
report of the Stamp Reporter has to be
upheld.
16. Both the Special Appeals are
dismissed as being not maintainable.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2014
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE DR. SATISH CHANDRA, J.
Civil Misc. Writ Petition No. 745 of 2014
Connected with W.P. No. 2222 of 2009
Mawana Sugars Ltd. ...Petitioner
Versus
Nagar Palika Parishad, Mawana & Anr.
 Respondents
Counsel for the Petitioner:
Sri S.D. Singh, Sri Rohan Gupta
Counsel for the Respondents:
Sri Ajay Rajendra
Constitution of India, Art.-226-read with
U.P. Municipalities Act, 1916-Section-