2004 INSC 0102
                                    SUPREME COURT OF INDIA

                                      Messrs Sahu Gupta Industries

                                                      Vs.

                                       Bihar State Electricity Board

                                  S.L.P. (C) No. 16417-16418 of 2003

                           (Shivaraj V. Patil and D. M. Dharmadhikari JJ.)

                                                 23.01.2004

                                                JUDGMENT

1. Leave granted.

2. Having heard learned counsel on either side, we are satisfied that the impugned order
cannot be sustained on a short ground that the Division Bench, as can be seen from the
impugned order, stated that the highly disputed question of fact could not be decided in writ
proceedings. In saying so, the Division Bench has overlooked the fact that the learned Single
Judge having gone into the questions of fact in the light of the rival contentions, recorded a
finding. It would have been a different situation if the learned Single Judge had said that the
disputed questions of fact were involved and declined to interfere. The learned Single Judge
having considered on the merits of the contentions, had passed a considered order. It was for
the Division Bench to examine the correctness and validity of the order of the learned Single
Judge when it was assailed before it. The question - whether there was a service of notice by
the appellant on the respondents was the principal question that arose for consideration. The
Division Bench ought to have considered on merits whether the order passed by the learned
Single Judge was correct or not.

3. In the view we are taking, we do not express one way or the other on the merits of the
contentions that are advanced before us. In this view, the impugned judgment is set aside and
the Letters Patent Appeal is remitted to the High Court for fresh disposal on merits of the
contentions that are raised in the appeals. All the contentions of the parties are left open to be
urged before the Division Bench. The appeals are allowed accordingly. No costs.

4. The interim order made by this Court on 19.12.2003 shall continue to operate for four
more weeks. It is open to the appellants to apply for appropriate interim order before the
Division Bench.

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