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Shiv Narayan Verma & 11 Others v. Prem Singh Rathore & Others - SPECIAL APPEAL No. 558 of 2007 [2007] RD-AH 8314 (2 May 2007)


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Court No.32

Special Appeal No 558 of 2007

Shiv Narayan Verma and others .....Appellants


Shri Prem Singh Rathore and others .....Respondents


Hon'ble S. Rafat Alam, J.

Hon'ble Rakesh Sharma, J.

This intra Court appeal, under the Rules of the Court, is preferred against the judgment/order  of the Hon'ble Single Judge of this Court dated 23.3.2007 permitting the petitioners-appellants to withdraw Civil Misc. Writ Petition No.39677 of 2003.

The appellants, who are five in number claimed to be the Class-IV employees of Kanpur Development Authority, Kanpur.

At the out set an objection has been raised by Sri A.A.Khan, learned counsel for the Kanpur Development Authority, Kanpur about the maintainability of the appeal at the instance of the appellants on the ground that they were not party in the writ petition  and their applications seeking impleadment were also rejected by the Hon'ble Single Judge.  It is submitted that the order rejecting the impleadment application since has not been challenged, became final. On the other hand, learned counsel for the appellants submits that the result of the petitioners-respondents by virtue of interim order dated 5.9.2003 in Civil Misc. Writ Petition No. 39677 of 2003, was declared and they were subsequently promoted. However, since the writ petition has been dismissed as withdrawn, the interim order shall be merged with the order of the dismissal of the writ petition and the petitioners-respondents, who were promoted pursuant to the interim order are liable to be reverted to the post on which they were working prior to the interim order dated 5.9.2003. It is, therefore, submitted that the Hon'ble Single Judge fell in error by permitting the petitioners to withdraw the writ petition, hence the order of the Hon'ble Single Judge dated 23.3.2007 cannot sustain and the same may be set-aside.

We do not find force in the submission for the simple reason that the prayer of the petitioners to withdraw the writ petition cannot be declined. In the case of Navin Jain and others Vs. State of U.P. & others, (Criminal Appeal No. 33 of 2002) decided on 10.1.2002  the Hon'ble Apex Court did not approve the order of the High Court refusing prayer of the petitioners to withdraw the writ petition. In the case in hand, the Hon'ble Single Judge on the submission made by the learned counsel for the appellants that he has been instructed to withdraw the writ petition, dismissed the writ petition as withdrawn. Therefore, in the absence of any reasonable ground, the order permitting the petitioners to withdraw the writ petition cannot be interfered with at the instance of the appellants who were not even party to the writ petition. However, there can be no dispute on the legal proposition that the interim order passed in a pending proceeding merges in the final order. An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes nonest.  The Hon'ble Apex Court in the case of South Eastern Coalfields Ltd. Vs. State of M.P. and others, 2003 (8) SCC 648 observed in para-28 of the judgment as under:

"The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced."

(emphasis added)

Therefore, where an interim order is passed and the writ petition is ultimately dismissed or is dismissed as withdrawn, the effect would be as if no order was ever passed.  A Division Bench of this Court in the case of Shyam Lal Vs. State of U.P., AIR 1968 Allahabad 139 held that an interim order merges in the final order and does not exist by itself.  It is further held that the result brought about an interim order would be nonest in the eyes of law, if the final order grants no relief. Therefore, it is well settled legal position that an interim order passed in a case, which is ultimately dismissed, is to be treated as not having been passed at all.

Thus, having heard learned counsel for the appellants, we do not find any fault in the order of the Hon'ble Single Judge permitting the respondents to withdraw the writ petition. Besides that the writ petition has simply been permitted to be withdrawn without deciding the issue involved in the writ petition on merit and thus, the order not being a judgment, special appeal does not lie against such an order under Chapter VIII Rule 5 of the Rules of the Court.

The appeal, therefore, being without merit, apart from being not maintainable, is dismissed.

Dated: 2.5.2007



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