# Court in M.V. Bijlani v. Union of India

- **Citation:** (2007) 3 ILRA 831
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-16
- **Case number:** Civil Misc. Writ Petition No. 41514 of 2006
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-m-v-bijlani-v-union-of-india-41227
- **Pages:** 4

## Headnote

Code of Civil Procedure- Order 21 rule
106(3)-
Execution
proceeding-
on
execution application Court summoned
the original record- on the adjourned
date application- dismissed in default-
application for restoration- would lie
under section151 CPC and not under rule

## Text

3 All] Arjun Prasad V. Smt. Ameer Jahan Begum
831
permanently is contrary to rules. It has
further been held that the inquiry
proceedings were in violation of U.P.
Government
Servant
(Discipline
&
Appeal) Rules, 1999, and contrary to the
principles of natural justice. In such
circumstances the question arises whether
a fresh inquiry is desirable. The Apex
Court in M.V. Bijlani v. Union of India
and others JT 2006 (4) SC 469 while
setting aside the orders of the Disciplinary
Authority etc., as there was no charge that
the amount was misappropriated by the
charged employee did not direct fresh
inquiry as the employee had suffered
enough due to delay in proceedings. In
this case the incident is of 1994. The
petitioner had retired in the year 1996.
The
disciplinary
proceedings
were
initiated against the petitioner in 1998.
The State Government passed order on
3.5.2002. The petitioner is more than 70
years of age. Charge no.1 has not been
found to be proved. In view of the
supplementary counter affidavit charge
no.2 stood diluted. Most of the pencils
and rubbers purchased were distributed. It
did not appear to be a case of
misappropriation
causing
loss
of
government funds. The findings on charge
no.3 and 4 at the most, amounts to a
technical violation. In the circumstances it
would not be expedient in the interest of
justice to direct a fresh inquiry.

46. In the result this writ petition
succeeds and is allowed and the order of
the State Government dated 3.5.2002,
Annexure-6 to the writ petition is
quashed. A writ of mandamus is issued
directing the respondents to release the
gratuity and pension along with the total
amount of pension already deducted by
the respondents within a period of three
months. In case the aforesaid amount is
not paid within time as directed above the
petitioner shall be entitled for interest at
the rate of 9% per annum from the date
gratuity and pension became due to the
petitioner.

Parties shall bear their own costs.
Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2007

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 41514 of 2006

Arjun Prasad

...Petitioner
Versus
Smt. Ameer Jahan Begum ...Respondent

Counsel for the Petitioner:
Sri. A.K. Roy

Counsel for the Respondent:
Sri. Promod Kumar Jain

Code of Civil Procedure- Order 21 rule
106(3)-
Execution
proceeding-
on
execution application Court summoned
the original record- on the adjourned
date application- dismissed in default-
application for restoration- would lie
under section151 CPC and not under rule
106.

Held: Para 7

The date was not one where the court
proposed to apply mind or to hear the
parties. Such a date cannot be treated as
the date for hearing within the meaning
of Rule 105 (2) of Order 21 CPC. The
application for restoration in such a case
would lie under Section 151 CPC and not
under Rule 106.
Case law discussed:
AIR 2003 Kar.-226, AIR 1986 M.P.-66, 2005(7)
SCC 300
832 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(Delivered by Hon'ble Janardan Sahai, J.)

1. An application for execution of
the decree was filed by the respondent
Smt. Ameer Jahan Begum. It appears that
23.5.2003 was fixed in the execution case.
It is common ground between the counsel
for the parties that the date was fixed for
summoning the file of the Suit. That is
also the finding of the court below which
has observed that earlier dates were also
fixed for that purpose but the record had
not been received and the execution was
again posted on 23.5.2003 for the
production of the record. On that date the
executing
court
passed
an
order
dismissing the execution case in default.
An application for restoration described
as being under Order 21 Rule 106 CPC
was
filed by
the respondent. The
application was not filed within the period
of 30 days time limit provided under
Order 21, Rule 106 (3) CPC but was filed
after
about
three
months
with
an
application to condone the delay. The
application was allowed by the executing
court by its order dated 16.5.2005.
Against that order a revision was filed
which has been dismissed by order dated
24.4.2006. Both these orders have been
challenged in this writ petition.

2. Sri A.K. Roy counsel for the
petitioner submitted that provisions of
Section 5 of the Indian limitation Act are
not applicable to execution proceedings
and therefore the courts below have
committed an error in allowing the
respondent's application under Order 21,
Rule 106.

3. Sub Rule (2) of Rule 105 of Order
21 CPC provides that where on the day
fixed or on any other day to which the
hearing may be adjourned, the applicant
does not appear when the case is called on
for hearing, the court may make an order
that the application be dismissed. In the
present case the date fixed was not a date
for hearing but a date for summoning the
file. In this view of the matter the order of
dismissal in default could not be treated
as an order passed within the meaning of
Order 21, Rule 105 (2). That being so, the
provisions of Rule 106 were not really
attracted. In such a case the restoration
application would lie under Section 151
CPC. The mere fact that the respondent
wrongly described the application as one
under Order 21, Rule 106 would not mean
that that is the provision which would
govern the situation.

4. Learned counsel for the petitioner
relied upon a decision of the Karnataka
High
Court
in
Smt.
Vithabai
G.
Ghodake and another Vs. United
Western Bank Ltd and others [AIR
2003 Karnataka 266] - para 16] While
considering the meaning of the word
'hearing' in the context of Rule 105 of
Order 21, the Karnataka High Court
relying upon interpretation of Statutes
Eighth Edition by N.S. Bindra, at page
985, held that even if the case is posted
for filing of the verified statement it has to
be construed that the case has been posted
for hearing for all purposes. It is in this
real sense, said the Karnataka High Court
that the meaning of 'hearing' has to be
taken into consideration and therefore the
dismissal of the application comes within
the meaning of Rule 105 (2) of Order 21,
CPC. The Karnataka High Court then
held that even if it is construed that an
application under Order 21, Rule 106,
CPC is not maintainable, it is open for the
Court to exercise inherent powers under
S. 151 CPC.
3 All] Arjun Prasad V. Smt. Ameer Jahan Begum
833

5. In Khoobchand Jain and
another Vs. Kashi Prasad and others
[AIR 1986 Madhya Pradesh 66] the
executing court had ordered issuance of a
warrant of attachment of moveable
property on furnishing by the decree
holder of a list of moveable properties but
the decree-holders failed to submit the list
and the court adjourned the case to
another date awaiting the execution of the
warrant and on the adjourned date neither
the decree holders nor their counsel
appeared when the case was called out
and the execution case was dismissed. It
was held by the Madhya Pradesh High
Court that the date was not a date for
hearing within the meaning of Order 21
Rule 105 CPC and the dismissal of the
execution application therefore did not
fall under Rule 105 (2), and consequently
the provisions of Rule 106 were not
attracted. The said case was considered by
the Apex Court in Damodaran Pillai and
others Vs. South Indian Bank Ltd
[2005
(7)
SCC
300]
and
was
distinguished but not overruled. It was
however held by the Apex Court that
Section 5 of the Limitation Act cannot be
invoked for condoning delay where an
order has been passed dismissing an
application under Order 21, Rule 105
CPC. In Radhakrishnan Vs. State of
Kerala W.P. (C) Nos. 5927 and 28645 of
2005 decided on 24.11.2005 the Kerala
High Court also agreed with the view
taken in Khoobchand's case. In the Kerala
case which has also been relied upon by
the court below the Execution Petition
was ordered to be put up with the records
on the date fixed. It was held that the
dismissal of the Execution Petition in
default was not under Order 21 Rule 105
CPC but under inherent powers and a
restoration application was maintainable
under Section 151 CPC. This decision of
the Kerala High Court with which I am in
agreement applies to the facts of the
present case.

6. Sub Rule 1 of Rule 105 provides
that the court before which an application
under Order 21 is pending may fix a day
for the hearing of the application. It is
thus clear that it is not every date fixed in
a pending application which is a date for
hearing. A date for hearing would be a
date fixed by the court for that purpose. A
date for hearing would be one where the
court proposes to hear the case or to apply
mind to the case. The power of dismissal
of the application in the absence of the
applicant provided under Sub Rule (2) can
be exercised on a day fixed for hearing or
on a day to which the hearing has been
adjourned. When the court fixes a date for
production of the file it does not fix a date
for hearing within the meaning of Sub
Rule 1. If the record is not produced on
that date and the court fixes another date
for the production of the record, such
adjourned date would not be a date to
which the hearing has been adjourned
within the meaning of Sub Rule (2) of
Rule 105.

7. In the present case it has been
held by the courts below that the date
fixed was for summoning the file. The
date was not one where the court
proposed to apply mind or to hear the
parties. Such a date cannot be treated as
the date for hearing within the meaning of
Rule 105 (2) of Order 21 CPC. The
application for restoration in such a case
would lie under Section 151 CPC and not
under Rule 106. The view taken by the
courts below therefore appears to be
correct. In the result the writ petition is
dismissed.
---------
834 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.05.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 7374 of 2007

Vinod Kumar Mishra

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Abhishek Dwivedi
Sri Amitabh Tripathi

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act 1921-S16 (3) and16 e-10 -Grant -of exemption
from requisite qualification-Petitioner
allowed to take intermediate classes in
Hindi subject-but in Graduation Sanskrit
was not the one of the subject as per
essential qualification required under
chapter II Appendix-A-parity claimed as
per Ram Ballabh Pathak-held-illegality
can not be allowed to perpetuated
However direction issued to Secretary to
examine
the
legality
of
grant
of
relaxation in accordance with law.

Held: Para 22

Although this Court may refuse the plea
of parity as raised by the petitioner qua
Sri Nandan Ballabh Pathak on the ground
that the illegality-cannot be permitted to
be perpetuated on the plea of parity or
similar treatment, yet the Court feels
that the matter with regard to Sri
Nandan Ballabh Pathak also requires
reconsideration
by
the
authorities,
concerned, not only for the purposes of
ensuring that the rule of law applies
equally to all as per Article 14 of the
Constitution of India more so when
public money is involved.

(Delivered by Hon'ble Arun Tandon, J.)

1. Petitioner Vinod Kumar Mishra
claims to have been appointed as L.T.
Grade
Teacher
in
Ganesh
Shanker
Vidyarthi
Inter
College,
Kanpur
(hereinafter referred to as college) on
30.09.1989. The petitioner claims to have
been working as such since then and in
support thereof has placed reliance upon
the certificate issued by the Principal of
the institution. Petitioner is possessed of a
degree of M.A. in Hindi. However, at the
graduation level i.e. B.A. He did not have
Sanskrit as one of the subject. The Inter
College is added and recognized under the
provisions of the Intermediate Education
Act.
The
U.P.
High
School
and
Intermediate Colleges (Teachers and other
Employees) (Payment of Salary) Act,
1971 as well as those of the U.P.
Secondary Education Services Selection
Board Act, 1982 are fully applicable to
the teachers of the institution in question.

2. One Sri Amrit Lal Singh, who
was working as Lecturer Hindi in the
institution retired on 30th June, 2001.
Petitioner claims that he has been
permitted to teach Intermediate Classes
subsequent to retirement of Sri Amrit Lal
Singh. As the petitioner did not have
Sanskrit as one of the subject at the
graduation level [which is admittedly an
essential qualification prescribed under
Appendix-A
to
Chapter-II
of
the
regulations framed under the Intermediate
Education Act for being appointed as
Lecturer (for teaching Classes XI and
XII)], he has made an application under
Section 16E(3) of the U.P. Intermediate
Education Act to the Madhyamik Shiksha
Parishad U.P. Allahabad (Board) for grant
of necessary relaxation in the minimum
qualification prescribed. The petitioner,