# Ashok Kumar Singh And Others v. D.D.C., Kanpur and another

- **Citation:** (2011) 1 ILRA 304
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-07
- **Bench:** Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-singh-and-others-v-d-d-c-kanpur-and-another-41880
- **Pages:** 3

## Headnote

C.S.C
Sri P.C.Agrawal
Sri R.K.Singh
Sri R.S Pandey
Sri T.N.Gupta

Civil
Procedure
Code-Section-151Second Application to recall earlier order
of dismissal in default-case shown on
both court-omission of Counsel-firstly
due to slip of eye could nor mark and
secondly Counsel suffering from High
Blood Pressure-held-the Counsel as well
as party both not diligent-with warning
of
Counsel
in
future-writ
Petition
restored on original number subject to
payment of cost of Rs. 1000/-

Held: Para 6

The Court can not restrain itself from
making a comment upon the conduct of
the counsel, which has not been up to
the mark. Once a petition is dismissed
and an application is moved by the
counsel for restoration, he should be
doubly vigilant that the application for
restoration does not get dismissed in
default. Dismissal of this application
indicates that the petitioner as well as
his counsel have not been diligent and
1 All] Ashok Kumar Singh And Others V. D.D.C., Kanpur and another
305
interested enough to prosecute the
matter.
Yet
on
medical
ground
unfortunate circumstances can happen
and in the present case counsel for the
petitioner has submitted that he was
suffering from blood pressure and heart
ailment and suddenly he went home.
Case law discussed:
2010(1) S.C. 391.

## Text

304 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

Having considered the facts and
arguments advanced across the bar, we are
of the view that the petition be disposed of
attended with following directions.

If an application is moved before the
competent Magistrate within 3 weeks, while
fixing a date of about a week, the learned
Magistrate may pass appropriate order
directing that the petitioner be not arrested
without permission of the Magistrate
between the date of moving application for
surrender and the date fixed for his
appearance in the court. In the meanwhile,
the court may call upon the prosecution to
obtain instructions from the Investigating
officer and thereafter, dispose of the bail
application accordingly in the light of the
observations made in Amarawati's case
(supra). It would also be open to the learned
Magistrate to pass order granting interim
bail to the petitioner in appropriate cases on
such terms and conditions as may be
deemed necessary till next date of hearing
of the bail applications in case the court is
not in a position to dispose of the bail
application or some further instructions are
required to do justice in the matter.

However, in grave offences like
murder, dacoity, robbery, rape etc or cases
under the Gangsters Act or where the
accused is likely to abscond and evade the
process of law or where the accused is a
habitual offender with lot of cases to his
discredit or in an offence involving high
stake scam, the court will act with restraint
and in its discretion may desist from
extending coverage of the said decision.

3. The petition is disposed of
accordingly
in
terms
of
above
directions/observations.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 7.03.2011

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Consolidation No. - 2413 of 1982

Ashok Kumar Singh and Others

 ...Petitioner
Versus
Deputy Director Of Consolidation,Kanpur
Camp Unnao and another ...Respondent

Counsel for the Petitioner:
Sri K.K.Singh
Sri Suresh Sharma

Counsel for the Respondents:
C.S.C
Sri P.C.Agrawal
Sri R.K.Singh
Sri R.S Pandey
Sri T.N.Gupta

Civil
Procedure
Code-Section-151Second Application to recall earlier order
of dismissal in default-case shown on
both court-omission of Counsel-firstly
due to slip of eye could nor mark and
secondly Counsel suffering from High
Blood Pressure-held-the Counsel as well
as party both not diligent-with warning
of
Counsel
in
future-writ
Petition
restored on original number subject to
payment of cost of Rs. 1000/-

Held: Para 6

The Court can not restrain itself from
making a comment upon the conduct of
the counsel, which has not been up to
the mark. Once a petition is dismissed
and an application is moved by the
counsel for restoration, he should be
doubly vigilant that the application for
restoration does not get dismissed in
default. Dismissal of this application
indicates that the petitioner as well as
his counsel have not been diligent and
1 All] Ashok Kumar Singh And Others V. D.D.C., Kanpur and another
305
interested enough to prosecute the
matter.
Yet
on
medical
ground
unfortunate circumstances can happen
and in the present case counsel for the
petitioner has submitted that he was
suffering from blood pressure and heart
ailment and suddenly he went home.
Case law discussed:
2010(1) S.C. 391.

(Delivered by Hon'ble Shabihul Hasnain, J.)

C. M. Application No.92343 of
2010,(For recall of order dated 3.9.2010)

1. This is a second application for
recall of the order. The petition was
dismissed in default on 7.5.2010. The
petitioner moved an application for
restoration on 17.8.2010 on the ground that
the counsel could not mark the case in the
cause list and it was due to the oversight of
the counsel that the matter was dismissed
in default. Unfortunately, this application
was again dismissed on 3.9.2010. This
second application has been moved by the
petitioner on 6.9.2010 on the ground that
the
counsel
for
the
petitioner
had
developed high blood pressure on that
fateful day and the petition was dismissed
in default. In both the applications learned
counsel has taken the responsibility on his
personal conduct.

2. This second application has been
vehemently
opposed
by
Sri
Suresh
Sharma, who says that this second
application for recall is not maintainable.
He says that the lower court in the
meanwhile has proceeded in the matter. He
argues that if the petition is restored it will
be construed by the lower courts that the
proceedings thereon should be stopped,
hence the application should not be
allowed and it should be rejected.

3. Petitioner counsel has argued that
counsels are sometimes in such a situation
where mistakes and oversights are quite
possible. The client, who is sitting far away
may not be punished for the conduct of the
counsel. In the present case, personal
ground has been taken on both occasions.

4. No encouragement can be given
by this Court for neglect and default of the
counsels, yet, a hard reality of the situation
can not also be overlooked. The argument
of learned counsel for the opposite parties
is quite correct that second application is
not maintainable. The Court is not giving
finding on this count also.

5. The petitioner counsel has referred
to case law reported in 2010 (1) S.C. 391
(Ram Kumar Gupta Vs. Har Prasad and
another) in which second application for
restoration was allowed by Hon'ble
Supreme Court at the cost of Rs.10,000/-.
Although this judgment has been passed in
the peculiar circumstances of the case and
it has not laid down any ratio yet the
counsel for the petitioner has been able to
demonstrate
that
in
exceptional
circumstances the courts can indulge to
some extent in entertaining the second
application for restoration. The Court feels
that the present case in hand also deserves
compassionate treatment.

6. The Court can not restrain itself
from making a comment upon the conduct
of the counsel, which has not been up to
the mark. Once a petition is dismissed and
an application is moved by the counsel for
restoration, he should be doubly vigilant
that the application for restoration does not
get dismissed in default. Dismissal of this
application indicates that the petitioner as
well as his counsel have not been diligent
and interested enough to prosecute the
306 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
matter. Yet on medical ground unfortunate
circumstances can happen and in the
present case counsel for the petitioner has
submitted that he was suffering from blood
pressure and heart ailment and suddenly he
went home.

7. Under the circumstances, the
Court feels that it is a fit case where
application
should
be
allowed.
Accordingly, the order of dismissal of the
writ petition dated 7.5.2010 as well as the
order dated 3.9.2010 dismissing the
application for recall of dismissal order
are hereby recalled.

8. The petition is restored to its
original number. However, the petitioner
shall pay a sum of Rs.1000/- to the
opposite party by the next date.

9. List in the next cause list.

10. It is made clear that restoration
of this petition will not mean that the
lower courts are barred in any manner
from
proceeding
in
the
matter
in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Writ Petition No. 5789 (M/S) of 1984

State of U.P. and another ...Petitioners
Versus.
Arjun Singh-(dead represented by Lrs)
and others

 ....Respondents

Indian
Forest
Act-Section-4-against
notification of Forest Act-objection filedalleging themselves as Bhumidhar-on
basis of Patta granted under section 3(4)
of U.P. Land Utilization Act-from record
clear that land in question never
subjected to cultivation.-except Jungle
and Jhari on spot as per inspection
Report-neither can be 'Sirdar' nor even
deposited land revenue-hence can be
termed
as
Bhumidhar-contrary
view
taken be courts below beyond recordwholly perverse suffers from serious
illegalities-not sustainable.

Held: Para 10 and 11

I have gone through the impugned
orders passed by the courts below. It is
not in dispute that the predecessors of
the respondents were given 'Patta' of the
land in question for cultivation under the
provisions of the U.P. Land Utilisation
Act, 1947. The land was never cultivated
and lessee failed to fulfill the purpose for
which it was given to them under the
aforesaid Act. The cultivation was never
done
and
no
proof
of
the
actual
cultivatory possession was established.
In Khatauni 1361F, column no.8 total
land in dispute has been shown not only
as uncultivated land but also as 'Banjar'.
During inspection, most part of the land
in dispute was found uncultivated or
waste land.

It is relevant to point out that the
predecessors
of
the
contesting
respondents, on abolition of zamindari,
can be a 'sirdar' under Section 19 of the
U.P. Zamindari Abolition & Land Reforms
Act. However, there is no documentary
evidence that answering respondents
ever
deposited
the
prescribed
land
revenue for the purposes of becoming
'Bhumidhar'.The appellate court also
erred in not considering the fact that no
documentary evidence was produced by
Arjun Singh/Balram Singh to establish
that the land in dispute was ever
cultivated
by
them.
Therefore,
the
finding of the learned lower appellate
court about the cultivatory possession is
beyond the record. In view of the fact
that
Ram
Gupta
never
acquired
bhumidhari rights according to law and,
therefore,
the
alleged
sale
deeds