# Claimants/ v. Brijesh Kumar Gupta and others

- **Citation:** (2009) 1 ILRA 47
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-12-05
- **Case number:** First Appeal From Order No. 182 of 1994
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/claimants-v-brijesh-kumar-gupta-and-others-41314
- **Pages:** 3

## Headnote

Code of Civil Procedure-Order VIII Rule
4
(2)-engagement
of
new
counsel
without withdrawal of power of earlier
counsel-after decision recall application
by subsequent counsel on ground name
not
shown
in
cause
list-held-not
maintainable-once party engage more
than one counsel-name of any one
counsel
shown-unless
satisfactory
explanation forward for non appearanceorder can not be recalled on request of
subsequent new counsel.

Held: Para 6

Now when the party to the proceedings
have chosen to engage two counsel
without terminating the authority of the
earlier counsel and the name of any of
them is duly printed and no one attends
the Court, it is obligatory for the party to
give
sufficient
explanation
for
the
absence of the both. The non printing of
the name of the subsequent counsel
itself would not be a sufficient ground to
recall the judgment and order passed on
merits.
Case law discussed:
2000 (39) A.L.R., A.I.R. 1982 Alld. 183, 2007
(3) ALJ 116

## Text

1 All] Smt. Krishna Kumari and another V. Brijesh Kumar Gupta and others
47
death of original landlord could not
withdraw the said rent. In this regard
reference may also be made to Section
30(4) of the Act which is quoted below:-

"On any deposit being made under
sub-section (1), the Court shall cause a
notice of the deposit to be served on the
alleged landlord, and the amount of
deposit may be withdrawn by that person
on application made by him to the Court
in that behalf."

8. For the aforesaid reasons I do not
find any error in the impugned judgments.
Continuance of deposit of rent in the case
under Section 30 of the Act after the death
of original landlord/opposite party in the
said case on 03.09.1988 was utterly
invalid and heirs of original landlord
could not withdraw the said amount.

9. Writ petition is accordingly
dismissed.

10. Tenants-petitioners are granted
six months time to vacate provided that:-

1. Within one month from today tenants
files an undertaking before the J.S.C.C. to
the effect that on or before the expiry of
aforesaid period of six months he will
willingly vacate and handover possession
of the property in dispute to the landlordsrespondents.

2. For this period of six months, which
has been granted to the tenants-petitioners
to vacate, they are required to pay
Rs.1800/-(at the rate of Rs.300/- per
month) as rent/damages for use and
occupation. This amount shall also be
deposited within one month before the
J.S.C.C. and shall immediately be paid to
the landlord-respondent.
3. Within one month from today tenants
shall deposit entire decreetal amount due
till date (after adjusting any amount
already deposited) before the J.S.C.C. for
immediate
payment
to
landlords
respondents.

In case of default in compliance of
any of these conditions tenants-petitioners
shall be evicted through process of Court
after one month and tenants-petitioners
shall be liable to pay damages at the rate
of Rs.600/- per month since after one
month till the date of actual vacation.

11. Similarly, if after filing the
aforesaid undertaking and depositing
decreetal amount and Rs.1800/- the
accommodation in dispute is not vacated
on the expiry of six months then damages
for use and occupation shall be payable at
the rate of Rs.600/- per month since after
six months till actual vacation. It is
needless to add that this direction is in
addition to the right of the landlordsrespondents to file contempt petition for
violation of undertaking and execution
application.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2008

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

First Appeal From Order No. 182 of 1994

Smt. Krishna Kumari and another

...Claimants/Appellants
Versus
Brijesh Kumar Gupta and others

 ...Respondents/Opposite parties

Counsel for the Appellants:
Sri Rajesh Kumar Yadav
Sri Ajay Kumar Goel
48 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Counsel for the Respondents:
Sri Arvind Kumar Mishra
Sri Amaresh Sinha

Code of Civil Procedure-Order VIII Rule
4
(2)-engagement
of
new
counsel
without withdrawal of power of earlier
counsel-after decision recall application
by subsequent counsel on ground name
not
shown
in
cause
list-held-not
maintainable-once party engage more
than one counsel-name of any one
counsel
shown-unless
satisfactory
explanation forward for non appearanceorder can not be recalled on request of
subsequent new counsel.

Held: Para 6

Now when the party to the proceedings
have chosen to engage two counsel
without terminating the authority of the
earlier counsel and the name of any of
them is duly printed and no one attends
the Court, it is obligatory for the party to
give
sufficient
explanation
for
the
absence of the both. The non printing of
the name of the subsequent counsel
itself would not be a sufficient ground to
recall the judgment and order passed on
merits.
Case law discussed:
2000 (39) A.L.R., A.I.R. 1982 Alld. 183, 2007
(3) ALJ 116

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard learned counsel for the
parties.

2. This first appeal from order was
decided on merits on 13.9.2007. The
counsel for the respondent no. 3 had not
appeared even in the revised list though
the name of Sri A.K. Mishra was shown.
Now another counsel appearing for the
respondent
no.
3
has
moved
this
application for the recall of the judgment
and order dated 13.9.2007 on the ground
that his name was not printed.

3. It is not disputed that for the same
respondent Shri A.K. Mishra was also
appearing and his name was duly printed
in the cause list. His Vakalatnama was not
withdrawn and therefore it can not be said
he ceased to have instructions. No leave
was granted to the new counsel to appear
replacing
the
earlier
counsel.
The
Division Bench of this Court in 2000 (39)
A.L.R. Balram Tiwari and others Vs.
Regional Transport Authority Varanasi
Region, Varanasi and another had
deprecated the practice of engaging a new
counsel
without
terminating
the
instructions of the previous counsel.

4. Order III, Rule 4 (2) C.P.C.
specifically
provides
that
every
appointment of the counsel by party shall
be deemed to be in force until determined
with the leave of the Court. A Division
Bench of this Court in A.I.R. 1982 Alld.
183 Bijli Cotton Mills (p) Ltd. Vs. M/s
Chhagenmal Bestimal and others while
considering the above provision laid
down that the authority of the counsel
once engaged can be terminated by the
client but this cannot be done orally and
must be done in writing with the
permission of the Court in the manner laid
down by Rule 4 (2) of Order III C.P.C.

5. In the instant case it is not the
case of the applicant/respondent no. 3 that
instructions were withdrawn from the
earlier counsel and his power stood
terminated in writing with the leave of the
Court. Thus, there was no termination of
the authority of the earlier counsel.

6. Now when the party to the
proceedings have chosen to engage two
1 All] The C.M.D. and others V. Masan Ali and others
49
counsel without terminating the authority
of the earlier counsel and the name of any
of them is duly printed and no one attends
the Court, it is obligatory for the party to
give sufficient explanation for the absence
of the both. The non printing of the name
of the subsequent counsel itself would not
be a sufficient ground to recall the
judgment and order passed on merits.

7. A similar view has also been
expressed by another Division Bench of
this Court recently in 2007 (3) ALJ 116
Smt. Veena Agarwal Vs. M/s Unjha
Ayurvedic Pharmacy & others.

8. Therefore, I am of the view that
non printing of the name of the
subsequent counsel is not a valid ground
for recall of the order.

9. Application rejected.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 308 of 2008

The Chief Managing Director (C.M.D.)
and others

...Appellants
Versus
Masan Ali and others
 ...Respondents

Counsel for the Appellants:
Sri Subodh Kumar

Counsel for the Respondents:
Sri Manoj Pathak

Constitution of India-Art. 226-Recall of
regularization
orderpetitioner/respondents
working
as
casual
labour
on
class
4th
postcorporation framed scheme to convert
those casual labours as full time workerthereafter
under
the
said
scheme
regularized service book prepared given
all
benefits
available
to
regular
employees-after
4
years
revocation
consequent
to
regularization-orderreverting as casual labour and recovery
of
excess
payment
consequent
to
regularisation in the garb of Uma Devi
Case-held-neither in Uma Devi nor in
subsequent decisions-authorities have
been
empowered
to
revoke
the
regularization order in utter violation of
principle
of
natural
justice-nor
the
workers found guilty if concealment of
material facts or playing fraud in getting
regularization-held-rightly quashed by
learned
Single
Judge-concerned
authority to take decision as fresh after
giving
full
opportunity
to
those
petitioner-fill final decision status quo
shall be maintained.

Held: Para 10

Be that as it may, so far as these appeals
are concerned we are prima facie of the
view
that
the
petitioners
were
regularised by the competent authority
giving
the
benefit
of
scheme
of
regularisation
which
was
neither
challenged in any Court of Law nor was
struck down. So long as the scheme is
continuing and its benefit has been
extended
to
similarly
placed
other
employees by issuing formal orders of
regularisation on or before 10.04.2006,
we do not find any reason as to why
mere delay in issuing the formal orders
of regularisation to the petitioners would
deprive the same benefit to them who
are also covered by the said scheme
which has been formulated by the
appellants themselves and has not been
discontinued. Moreover, once the benefit
of regularisation has been conferred
upon a person, before its revocation it is
incumbent upon the employer to afford
adequate opportunity of defence. The
alleged show cause notice issued by the
appellants in the case in hand only