# Ambrish Dwivedi & Ors v. Sri Amnand Kumar Singh, M.D., Pradeshik Cooperative Dairy Federation Ltd., Lko. & Anr

- **Citation:** (2025) 4 ILRA 363
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-24
- **Case number:** Contempt Application (Civil) No. 3413 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ambrish-dwivedi-ors-v-sri-amnand-kumar-singh-m-d-pradeshik-cooperative-dairy-54589
- **Pages:** 8

## Headnote

A. Contempt Law - Recall application -
Maintainability - Contempt petition was
disposed of ex-parte - Payment of 7%
interest in compliance of writ order was
not complied with, however, it was
alleged that the same has been done -
Making
misrepresentation
before
the
court was leveled in recall application -
Effect - Held, misrepresentation is amount
to fraud and fraud vitiates all proceedings
and this Court is of considered opinion
that this law will also similarly apply in
the contempt petition in an event, the
order is passed on misrepresentation or
fraud on behest of either of the parties -
Recall application is maintainable. (Para
23, 24 and 25)

Recall application allowed. (E-1)

List of Cases cited:-

## Text

4 All. Ambrish Dwivedi & Ors. Vs. Sri Amnand Kumar Singh, M.D., Pradeshik Cooperative Dairy
 Federation Ltd., Lko. & Anr.
363

30. The concerned Court is directed to
do needful for ensuring the presence of the
accused/applicants namely Javed Ahmad @
Javed S/o Kurban Ali, Sartaj S/o Kurban
Ali, Mo. Zafar @ Jafar S/o Mo. Nafees and
Hameedan @ Hameeda W/o Kurbaan
Ahmad for the purposes of concluding the
trial.

31. Considering the unconditional
apology tendered by Shri Sajjad Hussain,
Advocate, and expressing remorse and
promise
made
that
in
future
such
misconduct would not be repeated as also
the request of members of the 'Bar', though
the conduct of the advocate is not worthy
of being pardoned for the reason that on
account of pendency of the large number of
cases this Court relies upon the statements
of the Members of the Bar who are
supposed to make correct statements before
the Court, the unconditional apology of Mr.
Sajjad Hussain, Advocate is accepted and
he is warned of and directed to be careful in
not repeating such type of misconduct in
future.

32. Office is directed to communicate
the certified copy of this order to the trial
Court forthwith.
----------
(2025) 4 ILRA 363
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.04.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Contempt Application (Civil) No. 3413 of 2023

Ambrish Dwivedi & Ors. ...Applicants
Versus
Sri Amnand Kumar Singh, M.D., Pradeshik
Cooperative Dairy Federation Ltd., Lko. &
Anr. ...Opposite Parties
Counsel for the Applicants:
Pradeep Kumar Tripathi

Counsel for the Opposite Parties:
Lalit Shukla

A. Contempt Law - Recall application -
Maintainability - Contempt petition was
disposed of ex-parte - Payment of 7%
interest in compliance of writ order was
not complied with, however, it was
alleged that the same has been done -
Making
misrepresentation
before
the
court was leveled in recall application -
Effect - Held, misrepresentation is amount
to fraud and fraud vitiates all proceedings
and this Court is of considered opinion
that this law will also similarly apply in
the contempt petition in an event, the
order is passed on misrepresentation or
fraud on behest of either of the parties -
Recall application is maintainable. (Para
23, 24 and 25)

Recall application allowed. (E-1)

List of Cases cited:-

1. St. Vs Baldev Raj; 1991 SCC Online All 1070

2.
Mahaveer
Prasad
Verma
Vs
Central
Administrative Tribunal, Lucknow; 2013 SCC
OnLine All 13904

3. Durga Nagpal Vs C/M, Patronage Institute of
Management Studies; 2013 SCC OnLine All
13298

4. United India Insurance Co. Ltd. Vs Rajendra
Singh; 2003 SCC 581

5.
Himalayan
Cooperative
Group
Housing
Society Vs Balwan Singh; (2015) 7 SCC 373

(Delivered by Hon'ble Shree Prakash
Singh, J.)
364 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Pradeek Kumar Tripathi,
counsel for the applicants and Sri Lalit
Shukla, counsel for the opposite party.

2. The present application for recall of
the order dated 20.2.2024 passed by this
Court in Contempt Application (Civil) No.
3413 of 2023 has been moved and the order
dated 20.2.2024 is quoted hereinunder:-

"Case called out.

None present for the petitioners.

Sri Lalit Shukla, learned counsel
for opposite party submits that the order
passed by the writ court has been complied
with. He further submits that the petitioners
have certain objections with respect to
calculation of amount on interest part.

Since the calculation with respect
to gratuity is the disputed question of fact
and that can be raised before the
appropriate forum, at appropriate stage.

In view of the aforesaid, no
contempt is made out at this stage.

The
contempt
petition
is
dismissed.

Notices are discharged.

Consigned to record."

3. Learned counsel appearing for the
applicants submits that the Writ A No.
6142 of 2022(Ambrish Dwivedi And
Others Vs. State of U.P. and Ors) was filed
with a prayer of payment of interest on
delayed payment of the gratuity as well as
leave encashment to the petitioners therein.
The Writ Court while passing the order
dated 8.5.2023 in the aforesaid writ
petition, has noted the submission of
counsel for the petitioners therein, that the
petitioners retired in the year 2014 to 2020
whereas, the gratuity was paid in the month
of August, 2021 and therefore, considering
the facts and circumstances of the case and
particularly, the provision of section 7(3A)
of payment of Gratuity Act 1972, directed
the respondents to ensure the payment of
interest @7% p.a. on the amount of delayed
payment of gratuity, from the date of their
retirement till the actual payment made to
them, within period of three months. The
Writ Court was conscious sufficiently and
therefore, it was further provided that if
amount is not paid within a period of three
months, the same shall carry further interest
@ 7% p.a. on the unpaid interest. He
submits that this order was passed after
hearing the parties and this has attend
finality. The order dated 8.5.2023 passed in
Writ A No. 6142 of 2022 is read as
follows:-

"1. Present petition has been filed
by the petitioners claiming interest on
delay in payment of the gratuity as well as
the leave encashment to the petitioners.

2. Submission of learned counsel
for the petitioners is that the petitioners
retired in the year 2014 to 2020 (as
detailed in Annexure No.1) whereas the
gratuity was paid in the month of August,
2021 as detailed in Para -18 of the writ
petition.

3. Considering the fact that on
payment of gratuity, the statutory interest is
prescribed under Section 7(3A) of the
Payment of Gratuity Act, the present
petition
is
disposed
off
directing
respondents to ensure payment of interest
at the rate of 7% per annum on the amount
of delay in payment of gratuity.

4. The amount of interest shall be
paid from the date of retirement till the
4 All. Ambrish Dwivedi & Ors. Vs. Sri Amnand Kumar Singh, M.D., Pradeshik Cooperative Dairy
 Federation Ltd., Lko. & Anr.
365
actual payment as indicated in Para - 18 of
the writ petition.

5. The interest as directed to be
awarded herein above, shall be paid to the
petitioners positively within a period of
three months from the date of production of
a certified copy of this order.

6. In case, the amount is not paid
within a period of three months as directed
above, the same shall carry a further
interest at the rate of 7% on the unpaid
interest as directed above.

7. The writ petition is disposed
off in above terms.

8. This order has been passed
in the presence of Shri Shanker Lal,
learned
counsel
appearing
for
respondent no. 2."

4. Referring the aforesaid, he submits
that on some part of the delayed payment,
the interest has been paid whereas, it has
been misrepresented before the Court that
the order passed by the Writ Court has been
complied with. He has drawn attention
towards the counter affidavit filed to the
application for recall and submits that in
fact, the opposite parties have failed to
reply that the interest on the each and every
part of the delayed payment of gratuity
have been done.

5. In addition, he submits that in fact
the counsel for the applicants could not
appear before the Contempt Court on
20.2.2024, which is apparent from the order
itself and on the sole submission of counsel
for the opposite party, the contempt petition
was dismissed assuming that the order
passed by the Writ Court has been
complied with and in fact the counsel for
the opposite parties did not bring the true
facts before the Court and thus, has
misrepresented and therefore, submission is
that the order dated 20.2.2024 may be
recalled.

6. On the other hand, learned
counsel for the opposite party has
vehemently opposed the submissions
aforesaid and submits that since there was
a dispute with respect to delayed payment
of the interest on the rest of the gratuity
amount and therefore, that is a disputed
question of fact and that cannot be
adjudicated at this stage, in a contempt
petition. He also added that subsequently,
coordinate bench of Contempt Court has
also passed several orders in other
contempt petitions, where the other such
petitioners/applicants have been relegated
before
the
appropriate
forum
for
adjudication of such factual disputes,
thus, submission is that the applicants are
not entitled for any relief. Adding his
arguments, he submits that review or
recall application is not maintainable
where the contempt petition is decided on
merits.

7. Having heard counsel for the
parties it transpires that the Writ Court
while passing the order on 18.5.2023 in
Writ No. 6142 of 2022 issued direction that
the opposite party shall ensure the payment
of interest with a specific rate of 7% p.a. on
the amount of delayed payment of gratuity.
It is also apparent from the order dated
20.2.2024 that on the date of passing of the
order, the counsel for the applicants was
not present and solely on the statement
given by cousnel for the opposite party, this
Court has dismissed the contempt petition
while considering that there was some
disputed question of fact which remains to
be adjudicated.

8. In fact gist of the argument of
counsel
for
the
applicants
is
that
admittedly, there was delay in payment of
366 INDIAN LAW REPORTS ALLAHABAD SERIES
interest and some interest on the delayed
amount of gratuity was given and so far as
the first, second and third installments are
concerned, the interest on the delayed
payment has not been done.

9. The direction of the Writ Court is
very clear in its terms that 7% p.a. interest
on the delayed amount of payment of
gratuity shall be paid and further, it has also
been directed by the Court that the interest
shall be paid from the date of retirement till
the actual payment as is indicated in
paragraph no. 18 of the writ petition. In fact
this fact was not brought into the
knowledge of the Court on the date of
passing of the order dated 20.2.2024 and
rather it was intimated that the order has
been complied with and the contempt court
under the impression that the order passed
by the writ court has been complied with in
letter and spirit dismissed the contempt
petition.

10. The objection is raised by counsel
for the opposite party that once a contempt
application is dismissed/disposed of, there
is no provision for recall of such order.

11. Time and again, this issue has
been dealt with by the several verdicts of
the Apex Court as well as the High Court.
In the case of State vs Baldev Raj 1991
SCC Online All 1070. It has been held that
the Contempt of Court Act, 1971, laid
down the procedure and there is no express
inherent power to the High Court for recall
or review. Paragraph no. 13,19 and 20 of
the
aforesaid
judgment
are
quoted
hereinunder:-

"13. Obviously the Contempt of
Courts Act, 1971 not only defines civil and
criminal contempt but also lays down the
procedure. This Act does not expressly give
any inherent power to the High Court in
matter of contempt of Court. It provides in
S. 19 appeals from order or decision of the
High Court in the exercise of its
jurisdiction to punish for contempt. When
the Act does not confer inherent power or
power of recall or review and provides
remedy against order or decision in the
matters of contempt. the power of the High
Court of recall or review in matters of
contempt cannot be invoked.

19. It is evident that this ruling
relates to the inherent powers of the High
Court in respect of power exercised under
Art. 226 of the Constitution. Facts of the
case werequite distinguishable. Person at
whoseinstance
power
of
review
was
exercised was notearlier party to the
petition. We are of theopinion that the
powers of the High Courtunder Art. 226
are much wider to securenatural justice. At
the risk of repetition it can besaid that the
powers of the High Courtin matters of
Contempt of Courts have beenlimited by
the preamble of the Contempt of Courts
Act,
1971.
It
provides
elaborate
procedureand then appeal against the
order or decisionof the High Court. We are
of the opinion that the Act impliedly
excludes
power
of
recallor
review.
However, as stated earlier even aftera final
order or decision in matter of Contempt of
Court a High Court has inherent power to
correct clerical or typing mistake.

20. In the instant case we have
heard Baldeo Raj and learned AGA at
length. Contention of Beldev Raj that the
case was fixed for hearing and on that date
judgment could not have been delivered.
Firstly this cannot be called a mistake. It is
not unusual that after hearing judgment is
delivered the same day. If a party refuses to
argue and participate in hearing by making
someappli cation of frivolous nature the
4 All. Ambrish Dwivedi & Ors. Vs. Sri Amnand Kumar Singh, M.D., Pradeshik Cooperative Dairy
 Federation Ltd., Lko. & Anr.
367
High Court can pronounce judgment. This
cannot be called a mistake apparent on the
record or a mistake of clerical nature.
Baldeo Raj further vehemently argued that
the bench was biased against him. This can
be a matter to be looked into in appeal but
cannot be called a clerical mistake. Baldeo
Raj was much aggrieved because at one
stage the bench hearing the contempt case
against him called the police and then
expressed regret. Once again this is a
matter to be considered in appeal and
cannot be called a mistake apparent on the
face of the record or a clerical mistake.
Contention that Baldeo Raj did not get
reasonable opportunity of hearing can be a
ground of appeal but not for review or
recall of ajudgment and order of conviction
or correction of clerical mistake."

12. Further, the reliance has also been
placed on the law rendered in the case of
Mahaveer Prasad Verma Vs. Central
Administrative
Tribunal,
Lucknow
reported in 2013 SCC OnLine All 13904.
Paragraph no. 4 of the abovesaid judgment
is reproduced hereinunder:-

"By the order dated 10.1.2012,
the contempt petition filed by the petitioner,
was dismissed in his absence on the ground
that the petitioner respondent has not
moved any application to bring on record
the successor since the contemner was
transferred.
Tribunal
noted
that
an
application for recall of an order passed in
a
contempt
proceeding,
is
not
maintainable. So far as the finding of
Tribunal that recall/review application is
not maintainable, seems to be correct.
Virtually, recalling of the order dated
10.1.2012, will amount to review of earlier
decision was was passed with the finding
on merit to the extent that successor officer
has
not
been
brought
on
record.
Review/recall or appeal are the statutory
remedies,
vide
AIR
1966
SC
641,
Harbhajan Singh v. Karam Singh and
others, 1988 (14) ALR 706, Vijai Bahadur
Vs. State of U.P., 1995 (26) ALR 627, Ram
Jiwan Singh and others Vs. The District
Inspector of Schools, Kanpur and others,
1979 (5) ALR 168, 1998 (33) ALR 456,
New India Assurance Co. Ltd. Vs. Smt.
Bimla Devi and others, 1997 (88) RD 562,
Smt. Shivraji and others Vs. Dy. Director
of Consolidation, Allahabad and others,
AIR
1970
SC
1273,
Patel
Narshi
Thakershi
and
others
Vs.
Pradyumansinghji
Arjunsinghji,
1987
(13) ALR 680, Dr. (Smt.) Kuntesh Gupta
Vs. Mgt. of Hindu Kanya Mahavidyalaya,
Sitapur etc., AIR 1964 SC 436, Laxman
Purushottam Pimputkar Vs. The State of
Bombay and others, and AIR 1965 SC
1457, Patel Chunibhai Dajibha etc. Vs.
Narayanrao Khanderao Jambekar and
another. Unless provided under the Act,
no application for review/recall may be
moved. The contempt of Courts Act, 1971
does not contain any provision for review
of a judgment. Hence the impugned order
dated 13.9.2012 does not seem to suffer
from any impropriety or illegality"

13. It has been said that in the
aforesaid case after passing the order, the
otherside was trying to persuade the court
for review/recall of the order and the same
was denied.

14. The reliance has also be placed in
the case of Durga Nagpal Vs. Committee
of Management, Patronage Institute of
Management Studies reported in 2013
SCC OnLine All 13298 and has referred
paragraph nos. 17 and 19 has been referred.
Paragraph nos. 17 and 19 of the abovesaid
judgment are quoted hereinunder:-
368 INDIAN LAW REPORTS ALLAHABAD SERIES

"17.
Keeping
in
view
the
proposition of law discussed hereinabove,
there appears to be no room of doubt that
once contempt proceeding was dropped and
contemnor was discharged, it was not open
for the Contempt Judge to review his own
order after entertaining the miscellaneous
application for
modification
of final
judgment. Since accused were discharged
(supra) and proceeding was closed, the
miscellaneous application for modification
was not maintainable. Thus, Contempt
Judge seems to have passed the impugned
order without jurisdiction. Since the
Contempt Judge exercised jurisdiction
without any authority, the special appeal
seems to be maintainable. Arguments
advanced by the learned counsel for the
respondents with regard to maintainability
of special, seems to be misconceived and is
not sustainable.

19. It is not so that respondent
petitioner is remediless. Instead of moving
a
miscellaneous
application
for
modification of order, the respondent
petitioner could have filed fresh contempt
petition on account of alleged violation of
undertaking given before the Court as it
constitute fresh cause of action or an
application
under
Article
215
of
Constitution of India could have been
moved for action and punishment by the
appropriate Court on account of violation
of undertaking given and relied upon by the
Court while discharging contemnor."

15. Referring the aforesaid, it has
been emphasized that while moving the
modification application after the final
judgment was passed, request was made for
reviewing the order and the same was
rejected and it was held that Contempt
Judge has no power to revive its own order.
So far as the issues involved in the instant
matter is that by misrepresenting, the
contempt petition got dismissed. In this
background, this has become a conspicuous
case in facts and law where, the effect and
meaning of the misrepresentation has to be
applied/interpreted.

16. Undoubtedly, there is no
provision of review or recall in the
contempt of Court Act 1971, but it does not
mean that the proportion of the settled laws
would also be redundant for the purpose of
recall of such order.

17. This Court may refer the case
Ram Chandra Singh Vs Savitri Devi
reported in (2003) 8 SCC 319 wherein, it
has been held that 'fraud is a conduct either
by letter or words which induces the other
person or authority' to take definite stand as
a response to the conduct of the former
either
by
word
or
letter
and
the
misrepresentation itself amounts to fraud
and misrepresentation consist in leading a
man into damage by willfully or recklessly
causing him to believe and act on
falsehood.

18. Further, in case of United India
Insurance Co. Ltd. Vs. Rajendra Singh
2003 SCC 581 it has very specifically been
held in paragraph nos. 15 and 16 that no
Court or tribunal can be regarded as
powerless to recall its own order if the
same is wrangled by misrepresentation or
fraud. Paragraph nos. 15 and 16 of the
abovesaid
judgment
are
quoted
hereinunder:-

"15. It is unrealistic to expect the
appellant Company to resist a claim at the
first instance on the basis of the fraud
because the appellant Company had at that
stage no knowledge about the fraud
allegedly played by the claimants. If the
Insurance Company comes to know of any
4 All. Ambrish Dwivedi & Ors. Vs. Sri Amnand Kumar Singh, M.D., Pradeshik Cooperative Dairy
 Federation Ltd., Lko. & Anr.
369
dubious concoction having been made with
the sinister object of extracting a claim for
compensation, and if by that time the
award was already passed, it would not be
possible for the Company to file a statutory
appeal against the award. Not only because
of the bar of limitation to file the appeal but
the consideration of the appeal even if the
delay could be condoned, would be limited
to the issues formulated from the pleadings
made till then.

16. Therefore, we have no doubt
that the remedy to move for recalling the
order on the basis of the newly-discovered
facts amounting to fraud of high degree,
cannot be foreclosed in such a situation.
No court or tribunal can be regarded as
powerless to recall its own order if it is
convinced that the order was wangled
through fraud or misrepresentation of such
a dimension as would affect the very basis
of the claim."

19. Again in the case of Himalayan
Cooperative Group Housing Society Vs.
Balwan Singh (2015) 7 SCC 373, it has
been said in so many words that the Court
is not bound by the statement or admissions
of the lawyer as the matter of law or legal
conclusions. In this regard paragraph no. 32
of the aforesaid judgment is quoted
hereinunder:-

"32. Generally, admissions of fact
made by a counsel are binding upon their
principals as long as they are unequivocal;
where, however, doubt exists as to a
purported admission, the court should be
wary to accept such admissions until and
unless the counsel or the advocate is
authorised by his principal to make such
admissions. Furthermore, a client is not
bound by a statement or admission which
he or his lawyer was not authorised to
make. A lawyer generally has no implied or
apparent authority to make an admission
or
statement
which
would
directly
surrender or conclude the substantial legal
rights of the client unless such an
admission or statement is clearly a proper
step in accomplishing the purpose for
which the lawyer was employed. We hasten
to add neither the client nor the court is
bound by the lawyer's statements or
admissions as to matters of law or legal
conclusions?"

20. Having at glance on the aforesaid
settled laws, it is borne out that so far as the
case of Baldev Raj(Supra) referred by
counsel for the opposite party, the same
was against an order of conviction of
contemner and instead filing an appeal
which is provided in the statue, a recall
application was moved, whereas, the
remedy of the appeal lies under section 19
of Act 1971 and therefore, the aforesaid
factual matrix of the case is altogether
different than that of the present case.

21. So long as the case ofDurga
Nagpal(Supra) is concerned, the facts of
this case are different to the instant case as
in the abovesaid case, the ground of
misrepresentation
or
fraud
was
not
involved neither raised nor decided and
therefore, the ratio of the abovenoted
judgment would also not be applicable in
the present matter.

22. Lastly, the case ofMahaveer
Prasad Verma(Supra) which is cited by
counsel for opposite party reveals that
review/recall was moved, which was
rejected by the Central Administrative
Tribunal in default and the same was
assailed before the High Court in the writ
jurisdiction and thereafter, the same was
quashed and the contempt petition was
restored and the tribunal was directed to
370 INDIAN LAW REPORTS ALLAHABAD SERIES
decided the same to bring the successor on
record, thus, the abovementioned case is
factually different to the instant case.

23. The recall application is moved on
the ground that it has unfairly been
submitted before the contempt court that
the order passed by the Writ Court has been
complied
with
though,
it
was
misrepresented before the Court. In the
recall application in paragraph nos. 4, 5
and 6, it has specifically been stated that
the interest of late payment of gratuity of
some installments have not been paid yet
and from perusal of the reply in
paragraph
no.
12
of
the
counter
affidavit/objections filed by the opposite
party, it is apparent that the same has not
specifically been denied, rather it has
been said that as per the availability of
the funds, the payment has been made,
but what happened with respect to the
payment of interest as per the rate of 7%
on the delayed payment is silent.

24.

It
is
trite
law
that
misrepresentation is amount to fraud and
fraud vitiates all proceedings and this Court
is of considered opinion that this law will
also similarly apply in the contempt
petition in an event, the order is passed on
misrepresentation or fraud on behest of
either of the parties.

25. In light of the aforesaid
submissions and discussions, this Court is
of considered opinion that the recall
application is maintainable.

26.

Consequently,
the
recall
application succeeds, thus, the recall
application is allowed and the order dated
20.2.2024 is hereby recalled.

Order on Contempt Petition

1. The Contempt Application (Civil)
No. 3413 of 2023 is restored on it's original
number.

2. List/put up this matter in the next
month.
----------
(2025) 4 ILRA 370
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.04.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 475 of 1984

Ferasat ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
M. Islam

Counsel for the Respondents:
D.G.A.

(A) Criminal Law - appeal - Indian Penal
Code, 1860 - Section 302 - Murder -
Conviction
-
Eyewitness
testimony
corroborated by medical evidence - Nonappearance of appellant and counsel -
Not always necessary to adjourn the
matter in case both appellant or his
counsels/lawyers are absent -Appeal can
be decided on merits after perusal of
record and judgment - Appointment of
amicus curiae not mandatory - if the case
is decided on merits in the absence of the
appellant, the higher court can remedy the
situation - in the case of direct evidence,
motive is of little significance or no
significance. (Para -3,21)

(B) Criminal law - Dying declaration -
Criminal Procedure Code, 1973 - Section
161 , Indian Evidence Act, 1872 - Section
32(1) - Statement of deceased recorded