Sakthivelu Polypack Vs. Asst. Commr. of Central Excise and ors. - Court Judgment

Excerpt:
.....- simultaneous disposition - articles 136 and 226 of constitution of india - high court finally disposed off writ petition filed by appellant while disposing miscellaneous petition for interim relief filed in writ petition - main part of order of high court directed that in event of writ petition being dismissed appellant would pay balance amount with interest - it indicates that writ petition was not being considered on merits and would be considered later - in such circumstance direction in operative part of order that writ petition is also disposed has to be set aside - high court directed to deal with writ petition on merit. - code of civil procedure, 1908.[c.a. no. 5/1908]. section 100: [arijit pasayat & lokeshwar singh panta, jj] second appeal formulation of substantial..........in the impugned order for depositing rs 5 lakhs and for furnishing the undertaking has already expired. the learned counsel for the appellant has prayed for extension of time to deposit the amount till 31-1-1998. the time for depositing the sum of rs 5 lakhs is extended till 31-1-1998. the undertaking in the form of affidavit which is required to be furnished under the order of the high court would be submitted by the appellant within one week from the date of this order. the appeal is disposed of accordingly. no costs.

Judgment:
ORDER

1. Leave granted.

2. This appeal is directed against the order of the Madras High Court dated 7-8-1997 whereby the writ petition filed by the appellant has been finally disposed of while disposing of the miscellaneous petition for interim relief filed in the writ petition. On behalf of the appellant it has been submitted that the earlier part of the order clearly indicates that the High Court was only dealing with the miscellaneous petition for stay and had passed a conditional order of stay subject to the appellant's depositing the amounts specified therein and furnishing an undertaking in the form of an affidavit. In the said order the High Court has also directed that in the event of the writ petition being dismissed the appellant would pay the balance of the amount along with interest @ 18% from the date on which it became due till payment. It has been urged that the said part of the order postulates that the writ petition was to remain pending and would be dealt with later and that the direction given in the last part of the order disposing of the writ petition is not in consonance with the earlier part of the order.

3. We find merit in this contention of the learned counsel for the appellant. The main part of the order which contains the direction that in the event of the writ petition being dismissed the appellant would pay the balance amount with interest @ 18% from the date on which it became due till payment indicates that the writ petition was not being considered on merits and would be considered later. In the circumstances the direction in the operative of the order that the writ petition is also disposed cannot be upheld and has to be set aside. This means that the writ petition filed by the appellant is to be treated as pending in the High Court and it would be dealt with by the High Court on merits at a later stage. It appears that the period which was fixed in the impugned order for depositing Rs 5 lakhs and for furnishing the undertaking has already expired. The learned counsel for the appellant has prayed for extension of time to deposit the amount till 31-1-1998. The time for depositing the sum of Rs 5 lakhs is extended till 31-1-1998. The undertaking in the form of affidavit which is required to be furnished under the order of the High Court would be submitted by the appellant within one week from the date of this order. The appeal is disposed of accordingly. No costs.