# Ashok Kumar Chaturvedi v. Union of India and others

- **Citation:** (2005) 3 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-26
- **Case number:** Re-Civil Misc. Recall Application No. 195804 of 2005
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-chaturvedi-v-union-of-india-and-others-40596
- **Pages:** 5

## Headnote

High Court Rules 1952-Chapter V, Rule12-Practice of Procedure Tied up cases
866 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
recall application-grant of interim order
or the order issuing Notices-can not be
treated as tied up with particular Benchthe practice which has been Specifically
prohibited by clean provisions of the
rule-can not be allowed in the garb of
recall-application-proper course to file
stay
vacation
Application-held-recall
application rejected with liberty to file
stay vacation application or any other
made as per provision of law recall
application not maintainable.

Held: Para 10

If such a procedure of filing application
to recall exparte
interim orders
is
permitted
to
be
adopted
by
the
respondents, then in every case the
respondents can file such applications,
instead of filing an application for
vacation of the stay order, and in all such
cases the matter would get tied up to
that Bench which had initially heard the
matter and had granted the exparte
interim order. This would frustrate the
provisions of Rule 14 of Chapter V of the
Rules of the Court which specifically
provides that a case shall not be deemed
to be tied up to the Bench merely
directing
issue
of
notice
to
the
respondents or granting an exparte
interim order.
Case law discussed:
Spl. Appeal No.555/04 decided on 12.7.04
AIR 2000 SC-1168
AIR 1996 SC-2592
1994 (2) E cases 498

## Text

3 All] Ashok Kumar Chaturvedi V. Union of India and others
865
Court in the case of Sukh Lal and the
Division Bench of Nagpur in Babu Lal
(Supra) have unequivocally held that
limitation is to be computed from the date
on which the sale has become absolute
and not from the date the sale certificate is
issued. This view is also supported by a
Division Bench of the Calcutta High
Court in the case of Smt. Anarjan Bibi
Vs. Chandramani [AIR 1932 Calcutta
75] where it held, after examining the
order XXI Rule 94 that..... ''the only effect
of that is that no order can be made until
the certificate has been issued, and not
that an application under either rule
should on that account be delayed.
Besides on the sale becoming absolute it
is more or less within the power of the
auction purchaser to get the sale
certificate as soon as he wants, because
the intention of the legislature as
expressed in the wording of Order XXI
Rule 94, is to issue the certificate with all
convenient speed.....' In the present case,
there is absolutely no reason given by the
respondent no. 3 why no effort was made
for obtaining the sale certificate within a
reasonable time. It is not denied that the
sale had become absolute on 21.4.1964
and father of the petitioner died in 1976
i.e. more than a decade after the sale had
become absolute. Even respondentno.3
applied for obtaining sale certificate only
on 17.3.1988 i.e. about a quarter of
century after the actual auction sale. The
contention of the learned counsel for the
respondent that once bar of limitation had
been pleaded and decided against the
petitioner in the execution proceedings, he
cannot be allowed to again raise the bar of
the
limitation
in
the
execution
proceedings, is without any merit. It is not
denied that earlier the application was
filed with respect to issuance of sale
certificate
and
not
possession.
The
functional facts in disposing off the
application under Order XXI Rule 95 are
different and the petitioner was well
within his right to have raised the
objection of limitation which was clearly
applicable and he cannot be estopped by
any principle including that of res
judicata. In any event, making an
application under Order XXI Rule 95 was
fresh cause of auction and the petitioner
cannot
be deprived of raising his
objections including on the ground of
limitation.

For the reason given above this petition
succeeds and is allowed and the impugned
orders dated 4.5.1991 and 5.1.1996 are
hereby quashed. No order as to cost.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Re-Civil Misc. Recall Application No.
195804 of 2005
In
Civil Misc. Writ Petition No. 59635 of 2005

Ashok Kumar Chaturvedi
...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Rishi Kant Rai

Counsel for the Respondents:
Sri K.C. Sinha
Sri Anil Kumar Mehrotra
Sri Santosh Kumar Pandey
Sri B.S. Yadav

High Court Rules 1952-Chapter V, Rule12-Practice of Procedure Tied up cases
866 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
recall application-grant of interim order
or the order issuing Notices-can not be
treated as tied up with particular Benchthe practice which has been Specifically
prohibited by clean provisions of the
rule-can not be allowed in the garb of
recall-application-proper course to file
stay
vacation
Application-held-recall
application rejected with liberty to file
stay vacation application or any other
made as per provision of law recall
application not maintainable.

Held: Para 10

If such a procedure of filing application
to recall exparte
interim orders
is
permitted
to
be
adopted
by
the
respondents, then in every case the
respondents can file such applications,
instead of filing an application for
vacation of the stay order, and in all such
cases the matter would get tied up to
that Bench which had initially heard the
matter and had granted the exparte
interim order. This would frustrate the
provisions of Rule 14 of Chapter V of the
Rules of the Court which specifically
provides that a case shall not be deemed
to be tied up to the Bench merely
directing
issue
of
notice
to
the
respondents or granting an exparte
interim order.
Case law discussed:
Spl. Appeal No.555/04 decided on 12.7.04
AIR 2000 SC-1168
AIR 1996 SC-2592
1994 (2) E cases 498

(Delivered by Hon'ble Vineet Saran, J)

1. This writ petition was filed with
the prayer for quashing the subsequent
transfer order passed in the case of the
petitioner. After issuing notices to the
respondents, this Court passed an interim
order dated 8.9.2005, which reads as
under:

"Issue notice to the respondents
fixing a date immediately after six weeks.
The petitioner as well as the
respondent no. 5 are both the Account
Clerks working in Nehru Yuva Kendra
Sangathan, which is a Government of
India undertaking. On their own request
the respondent no.5 was transferred from
Ghazipur
to
Lucknow
whereas
the
petitioner was transferred from Mau to
Ghazipur by order dated 13.7.2005
passed by the Zonal Director, Nehru Yuva
Kendra Sangathan, Lucknow, respondent
no.3. In pursuance of the aforesaid order
the petitioner was relieved from Mau on
15.7.2005 and he went to Ghazipur to join
on 16.7.2005. However, although the
respondent no. 5 had been relieved from
Ghazipur but the petitioner was not
permitted to join there. Meanwhile the
respondent no. 3 passed a fresh order
dated 16.8.2005 stating that the transfer
of respondent no.5 shall remain stayed till
April 2006 and by another order dated
28/29.8.2005 the petitioner was attached
to
Nehru Yuva
Kendra Sangathan,
Gorakhpur until further orders. The
submission of the petitioner is that since
the transfer of the petitioner as well as
respondent no.5 had both been made on
their own request and the respondent no.5
having
been
already
relieved
from
Ghazipur, the petitioner ought to have
been permitted to join at Ghazipur on
16.7.2005. It has further been contended
that the impugned orders dated 16.8.2005
and 28/29.8.2005 have been passed for
extraneous consideration and on the
influence of respondent no.5 and the
petitioner who was working at Mau has
consequently been attached to Gorakhpur
for indefinite period instead of being
permitted
to
join
at
Ghazipur
in
pursuance of initial transfer order dated
13.7.2005. Considering the aforesaid
3 All] Ashok Kumar Chaturvedi V. Union of India and others
867
facts and circumstances of this case, the
operation of the impugned orders dated
16.8.2005 and 28/29.8.2005 passed by the
respondent no.3 shall remain stayed and
the petitioner shall be permitted to join in
the
office
of
Nehru
yuva
Kendra
Sangathan, Ghazipur as already directed
by initial order dated 13.7.2005."

2. Respondent no. 5 has filed this
recall application under Chapter XXII of
the Rules of the Court, 1952 read with
Section 151 of the Code of Civil
Procedure, with the prayer for recalling
the interim order dated 8.9.2005 passed
by me. The said application is supported
by an affidavit of respondent no. 5. No
counter affidavit to the averments made in
the writ petition has been filed. Because a
recall application has been filed, this
matter haws been listed before me as a
tied up matter.

3. The preliminary question which
requires consideration is as to whether a
recall application in such a case would be
maintainable or not, as the option open to
the applicant-respondent no. 5 was to file
an application for vacating the exparte
stay order, alongwith a counter affidavit.

4. Sri A.K. Mehrotra, learned
counsel appearing for the applicantrespondent no. 5 has submitted that since
by the interim order dated 8.9.2005 final
relief had been granted, the same would
amount to be a judgment and therefore the
party aggrieved by such an order would
have an option of either filing a recall
application or stay vacation application or
challenging the said order in special
appeal. In support of his submission he
has relied upon a Division Bench decision
of this Court dated 12.7.2004 rendered in
Special Appeal No. (555) of 2004, State
of U.P. Vs. Smt. Meera Sankhwar. In
the alternative, it has also been submitted
that since the order has been obtained by
fraud,
as
material
information
was
concealed by the petitioner at the time of
filing of the writ petition, this Court has
jurisdiction to recall the order passed by
it.

5. Having heard learned counsel for
the
applicant-respondent
no.
5
and
considering the provisions of law, in my
view, in the facts and circumstances of
this case, the recall application filed by
the applicant-respondent no. 5 would not
be maintainable and the proper course for
him, available under law, would be to file
an application for vacation of the stay
order alongwith a counter affidavit.

6. The decision in the case of State
of U.P. Vs. Smt. Meera Sankhwar (supra)
would not apply to the facts of this case.
In the said case an appeal had been filed
challenging the interim order passed by
the learned Single Judge and since the
Court was of the opinion that the interim
order passed actually amounted to grant
of final relief, it was held that the special
appeal against such an interim order
would be maintainable.

7. Rule 12 of Chapter V of the Rules
of Court, 1952 provides for filing of an
application for review of a judgment.
Rule 13 provides for filing subsequent
application on the same subject matter.
Rule 14 relates to tied up cases. In all
such cases any application filed would be
heard by the same Judge who had passed
the earlier order. The present application
filed by the applicant-respondent no. 5
cannot be treated as a review application.
Rule 14, which relates to tied up cases,
reads as under:
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
"14. Tied up cases.- (1) A case partly
heard by a Bench shall ordinarily be laid
before the same Bench for disposal. A
case in which a Bench has merely
directed notice to issue to the opposite
party or passed an ex parte order shall
not be deemed to be a case partly heard
by such Bench."

8. In the present case notice was
issued to the respondents and the interim
order had been granted. The order had not
attained finality, which could only be
after any such order had been passed after
hearing counsel for both the sides. Even
assuming
(without
expressing
any
opinion) that any final relief had been
granted by the aforesaid ex-parte interim
order, the same may have trappings of
final judgment or order for the purposes
of filing a special appeal, but the
procedure of filing an application for
recall cannot be permitted especially
when the other procedure of getting the
said ex-parte stay order vacated is
provided
by
filing
an
application
alongwith a counter affidavit. By filing a
recall application under Section 151 the
case gets tied up to this Bench, which is
neither proper nor permissible under the
Rules of Court.

9. The other submission of the
applicant-respondent no. 5 that since the
said ex-parte interim order has been
obtained by fraud and by not disclosing
the material information in the writ
petition and hence the application for
recall can be filed by the respondents, also
does not have force. The decisions in the
cases of R.K. Parasher Vs. Dinesh
Kumar AIR 2000 S.C. 1168; Indian
Bank Vs. M/s Satyam Fibres (India)
Pvt.
Ltd.
AIR
1996
S.C.
2592;
Vidyottama Gupta Vs. Km. Nirmala
Gupta 1994 (2) Education & Service
Cases 498 as have been relied upon by the
learned
counsel
for
the
applicantrespondent no. 5 do not help him. All the
said cases relate to filing of a recall or
review application where the final orders
had been passed by the Court.

10. It is true that in case if final
order has been passed by a Court and
subsequently it was found that fraud had
been played upon the Court or that a party
had
not
disclosed
any
material
information which had subsequently come
to the knowledge of the other party, an
application for recall or review of the said
order can be filed in which case
application has to be heard by the same
Bench which had passed the earlier order.
Such is not the position in the present
case. Here since exparte interim order had
been passed by this Court, the proper
course available for the applicant would
be to file an application for vacation of
the stay order, supported by a counter
affidavit giving detailed reply to the
contents of the writ petition. If such a
procedure of filing application to recall
exparte interim orders is permitted to be
adopted by the respondents, then in every
case the respondents can file such
applications,
instead
of
filing
an
application for vacation of the stay order,
and in all such cases the matter would get
tied up to that Bench which had initially
heard the matter and had granted the
exparte
interim
order.
This
would
frustrate the provisions of Rule 14 of
Chapter V of the Rules of the Court which
specifically provides that a case shall not
be deemed to be tied up to the Bench
merely directing issue of notice to the
respondents or granting an exparte interim
order.
3 All] No.2788858 (P) Ex. Babu Ram V. Union of India and others
869
11. Thus, this application filed with
the prayer for recall of the exparte interim
order dated 8.9.2005 is being rejected on
the aforesaid grounds, without expressing
any opinion on the merits of the case. The
applicant-respondent no. 5 shall be at
liberty to file an application for vacation
of the aforesaid exparte interim order
alongwith a counter affidavit giving
detailed reply to the averments made in
the writ petition. Application Rejected.
---------
ORIGINAL GURISDICATION
CIVIL SIDE
DATED: ALLAHABAD 25.10.2005

BEFORE
THE HON'BLE TARUN AGARWAL, J.

Civil Misc. Writ Petition No.47465 of 2002

No.2788858 (P) Ex. Babu Ram ...Petitioners
Versus
Union of India and others ...Respondents

Counsel for the Petitioners:
Sri Rajesh Yadav

Counsel for the Respondents:
Sri S.K. Tripathi,
ADDL.S.C.
Sri B.N. Singh
S.S.C.

Army Pension Regulations-Regulation173-Disability
Pension-Petitioner
enrolled in army service on 26.8.91
hospitalised on 14.11.91-remained under
treatment upto 10.6.92-suffering from
adjustment
reaction with depressive
mood-309-petitioner remained out of
service due to personality disorder-claim
for disability pension rejected medical
report indicates no past history of
mental illness disease attributed to and
was aggrivated due to harassment and
maltreatment in training center-helddenial of pension not only erroneous but
also arbitrary and against the pension
rules.

Held-Para 14 and 16

An analysis of the psychiatry report
clearly indicates that the onset of the
petitioner's problem and the disease was
attributable to and was aggravated by
the
military
service.
Even
if,
the
petitioner was suffering from the disease
prior to his enrolment in the service, the
disease was aggravated due to the
harassment and maltreatment of the
petitioner by others in the training
centre.

In view of the aforesaid, the action of
the respondents in not granting the
disability pension is not only erroneous,
but is also arbitrary and is against the
Pension Rules. Pension is no longer a
bounty and is a right of the individual
under
Article
21
and
41
of
the
Constitution of India.
Case law discussed:
1997(1) ESC-477
2002(2) UPLBEC-1734
2001(1) UPLBEC-2010
1998(1) UPLBEC-708
1996(2) UPLBEC-761

(Delivered by Hon'ble Tarum Agrawal, J.)

1. The petitioner was enrolled in the
Army on 26.8.1991 and was sent for
training in the Maratha Light Infantry
Cerntr, Belgaum. At the time of his
enrolment, the petitioner was medically
checked and was found fit and was
govern an "A" medical category.

2. Within two months of his joining,
the petitioner was admitted in the hospital
on 14.11.1991 and remained under
treatment unto 10.6.1992, where his
disease
was
diagnosed
as
an
"ADJUSTMENT
REACTION
WITH
DEPRESSIVE MOOK-309". As a result