When an appeal order is not decided on merits then it cannot be said that the order has attained complete finality: Meghalaya High Court

Serial No.02 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG MCNo.67 2021 Date of Order: 25.11.2021 Srilekha Das Purkayastha & ors Vs. Director General Assam Rifles & ors Hon’ble Mr. Justice Sanjib Banerjee Chief Justice Hon’ble Mr. Justice W. Diengdoh Judge For the Petitioner Appellant(s) For the Respondent(s) i) Whether approved for reporting in Law journals etc.: ii) Whether approved for publication in press: Mr. MK Choudhury Sr.Adv with Mr. TN Srivinasan Adv Mr. R Deb Nath CGC Mr. N Syngkon Adv for R 2 3 & 4 JUDGMENT:(Oral) 1. The present application under Section 5 of the Limitation Act 1963 has been filed by would be appellants who had been granted leave to intervene in an appeal that has since been dismissed as withdrawn. 2. It will be evident from the order dated September 26 2018 by which leave was granted to the present applicants to intervene in the appeal that writ petitions had been filed on behalf of the applicants and the principle issue decided by the order under appeal in WA No.78 of 2016 would govern the writ petitions filed by these applicants. 3. As far as WA No.78 of 2016 is concerned the appeal was permitted to be withdrawn by an order dated October 22 2021 since the notice challenged by the writ petitioner therein was withdrawn and as such the relevant writ petitioner’s cause of action did not survive. 4. However at the time that WA No.716 was permitted to be withdrawn leave was granted to the applicants in MCNo.18 to file a fresh writ appeal. The present application for condonation of delay has been filed in connection with an appeal proposed from the same order that was assailed in WA No.716. 5. It is submitted on behalf of the applicants that since the order impugned in WA No.716 would govern the decision making process at the writ court stage the independent petitions filed by the present applicants may suffer the same fate. 6. It may be observed that the order impugned in WA No.716 was carried in an appeal. However the appeal was not decided on merits but was permitted to be withdrawn. In such a scenario the order impugned in WA No.78 of 2016 cannot be said to have been attained complete finality. In such circumstances it will be open to the applicants to pursue their writ petitions in accordance with law and even if the learned Single Bench finds embarrassment in passing any order different from the order impugned in WA No.716 the applicants will have the right to prefer appeals from the individual writ petitions. 7. Accordingly the present application is considered as superfluous and dismissed with liberty to the applicants to challenge any order that may be passed on the writ petitions filed by them covering the same or similar 8. There will be no order as to costs. 9. Accordingly WA No.19 of 2021 and MC No.69 of 2021 are dismissed at the receiving stage. W. Diengdoh) Judge Chief Justice Meghalaya “Lam DR PS” 

Summary: The order impugned would govern the decision-making process at the writ court stage, the independent petitions filed by the present applicants may suffer the same fate. Such an opinion was held by The Hon’ble High Court of Meghalaya before The Hon’ble Mr. Chief Justice Sanjib Banerjee and The Hon’ble Mr. Justice W. Diengdoh in the matter of Srilekha Das Purkayastha &amp; ors Vs. Director-General, Assam Rifles &amp; ors [MC (WA) No.67/2021].  The facts of the case were associated with an application filed under Section 5 of the Limitation Act, 1963 who was granted leave to intervene in an appeal that was dismissed as withdrawn. The order passed on September 26, 2018, was evident enough that the grant of leave given to the present applicants to intercede on behalf of the applicants that writ petitions were filed. Moreover, the appeal in WA No.78 of 2016 would govern the principle issue of the writ petition filed by the applicants.  It was found that withdrawn leave was granted to the applicants in MC (WA) No.9 of 2018 to file a fresh writ appeal at the time when WA No.78 of 2016 was permitted to do so. On behalf of the applicant, it was submitted that as the decision-making process at the writ court stage was to be governed by the impugned order WA No.78 of 2016 then the independent petitions filed by the present applicants may suffer the same fate. Therefore, in such situations, it was open to the applicants to pursue their writ petitions in accordance with the law and even if the learned Single Bench found embarrassment in passing any order different from the said impugned order, the applicants had the right to prefer appeals from the individual writ petitions. The Hon’ble Court held that “Accordingly, the present application is considered as superfluous and dismissed with liberty to the applicants to challenge any order that may be passed on the writ petitions filed by them covering the same or similar issues… Accordingly, WA No.19 of 2021 and MC (WA) No.69 of 2021 are dismissed at the receiving stage.”