# Deo Narain Gupta v. Mohammad Ahmad Saleem and another

- **Citation:** (2006) 2 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-28
- **Case number:** Civil Misc. Contempt Application/Petition No.2140 of 2004
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deo-narain-gupta-v-mohammad-ahmad-saleem-and-another-40617
- **Pages:** 4

## Headnote

918 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
S.C.

Contempt of Court Act. S-12 practice and
procedure proceeding initiated for non
compliance of final judgment contemnor
taken plea about pending of special
appeal even section 5 application not
decided- in the eye of law no stay
application pending hearing of contempt
proceeding can not be deferred.

Held-Para 9

In my opinion, the filing of a belated
appeal by the opposite party was to
circumvent the order passed by the
Court.
Till
date,
nothing
has
been
indicated as to what steps, the opposite
party has taken to get the application
under Section 5 of the Limitation Act
decided or get the appeal decided on
merit. At the present moment, the
present appeal filed by the opposite
party
is
defective
and
the
stay
application does not exist in the eyes of
law. Consequently, deferring the hearing
of the contempt application cannot be
granted to the Opposite party.
Case law discussed
Crl. Appeal no. 841/01 decided on 20.08.01
1995 Suppl. (4) SCC 465
1992 (4) SCC-164
2004 (7) SCC-261
2005 SCC (Crl.) 1357

## Text

2 All] Deo Narain Gupta V. Mohammad Ahmad Saleem and another
917
8. In the present case also, the prayer
for adducing the additional evidence has
been made by the respondents merely to
fill up the gaps in this case. In my view,
the case of the respondent would thus not
be covered under clause (b) also, as it is
only in exceptional and extraordinary
circumstances that the appellate court
may, on its own, direct production of any
document or witness only to enable it to
pronounce the judgment or for any other
substantial cause. There is no substantial
cause placed before me on the basis of
which, on its own, the appellate court
could
have
directed
the
additional
evidence to be adduced. As observed by
the Apex Court in the case of Nathu Singh
(supra), the true tests in such a case would
be as to whether the appellate court is able
to pronounce the judgment on the
materials before it, without taking into
consideration the additional evidence
sought to be adduced. In the present case,
in my view, the appellate court could have
pronounced the judgment without the
additional evidence sought to be produced
by the respondent, as evidence regarding
proof of the document had already been
adduced by the parties before the trial
court. The parties cannot be given
opportunity to better the case or adduce
additional evidence only to fill up gaps
left out in the case before the trial court,
or else this would be a never ending
process, and the parties would continue to
move applications for adducing additional
evidence
at
every
stage
of
the
proceedings.

9. The appellate court can thus direct
a party to adduce additional evidence only
if the conditions under Rule 27 of Order
41
C.P.C.
are
satisfied.
Additional
evidence in appeal cannot be filed by any
party to the appeal as of right. Since the
case of the respondent for adducing
additional evidence is not covered under
any of the three clauses of Rule 27 of
Order 41 C.P.C., the appellate court has
erred in law in passing the impugned
order dated 27.9.2004, allowing the
application of the respondent to produce
additional evidence.

10. Accordingly, this writ petition is
allowed. The order dated 27.9.2004
passed by the Additional District Judge,
Aligarh in Civil Appeal No. 10 of 2003 is
quashed. Both the sides have submitted
that as the appeal is pending since 2003, it
may be disposed of at the earliest.
Accordingly, it is provided that the lower
appellate court shall decide the appeal
expeditiously,
preferably
within
six
months from the date of filing of a
certified copy of this order before it,
without
granting
any
unnecessary
adjournment to either party.

No order to cost. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Contempt Application/Petition
No.2140 of 2004

Deo Narain Gupta

...Applicant
Versus
Mohammad Ahmad Saleem and another

...Opposite Party

Counsel for the Applicant:
Sri J.P. Singh
Sri Dhirendra Singh

Counsel for the Opposite Parties:
Sri Nurul Hude
918 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
S.C.

Contempt of Court Act. S-12 practice and
procedure proceeding initiated for non
compliance of final judgment contemnor
taken plea about pending of special
appeal even section 5 application not
decided- in the eye of law no stay
application pending hearing of contempt
proceeding can not be deferred.

Held-Para 9

In my opinion, the filing of a belated
appeal by the opposite party was to
circumvent the order passed by the
Court.
Till
date,
nothing
has
been
indicated as to what steps, the opposite
party has taken to get the application
under Section 5 of the Limitation Act
decided or get the appeal decided on
merit. At the present moment, the
present appeal filed by the opposite
party
is
defective
and
the
stay
application does not exist in the eyes of
law. Consequently, deferring the hearing
of the contempt application cannot be
granted to the Opposite party.
Case law discussed
Crl. Appeal no. 841/01 decided on 20.08.01
1995 Suppl. (4) SCC 465
1992 (4) SCC-164
2004 (7) SCC-261
2005 SCC (Crl.) 1357

(Delivered by Hon'ble Tarun Agarwala, J.)

1. This Court finally allowed the
writ petition No.21103 of 1999 by a
judgment dated 26.3.2004 quashing the
impugned
order
dated
28.6.95
and
holding that the petitioner would be
deemed to be in service till 30.6.97 and
would be entitled to all consequential
benefits including salary and retirement
benefits. The respondents were further
directed to pay the entire arrears of salary
within 8 weeks from the date of the
submission of a certified copy of the
order. The respondents were also directed
to pay the retirement benefits treating the
applicant to be in service till 30.6.1997.

2. The judgement of this Court was
not complied by the opposite party and
accordingly
the
present
contempt
application was filed on 28.7.2004.
Notices were issued to the opposite party
No.1 on 29.7.2004 and one more
opportunity was granted to the opposite
party to comply with the order of the
Court. On 17.9.2004, the opposite party
No.1 filed a counter affidavit indicating
that the opposite party has sought
instructions from the higher authorities
for the compliance of the order and
prayed that the hearing of the contempt
petition be adjourned for two months· to
enable the opposite party to take a
decision and comply with the orders of
the Court.

3. During the pendency of the
contempt application, it transpires that the
opposite party No.1 was transferred and
an impleadment application was filed to
implead the opposite party No.2, who was
subsequently impleaded by an order dated
21.7.2005. The opposite party No.2 has
also filed a counter affidavit indicating
that the State Government by a letter
dated 18.3.2005 granted permission to file
a Special Appeal, pursuant to which a
Special Appeal No. 289 of 2005 was filed
and, therefore has prayed that the
contempt proceedings be deferred till the
disposal of the Special Appeal.

4. Sri Nurul Huda, the Standing
Counsel appearing for the opposite party
contended that since the Special Appeal is
pending consideration before this Hon'ble
Court, the contempt proceedings should
be kept in abeyance till the disposal of the
Special Appeal. In support of his
2 All] Deo Narain Gupta V. Mohammad Ahmad Saleem and another
919
submission, the learned counsel placed
reliance upon a decision of the Supreme
Court in Ram Avadh Singh vs. Lalji
Yadav and others, in Criminal Appeal
No.841 of 2001 decided on 20.8.2001, in
which it was held that the contempt
proceedings
should
have
not
been
continued in view of the appeal having
been filed against the said judgment.
Further reliance was placed in the case of
Modern Food, Industries (India) Ltd.
And another vs. Sachidanand Dass and
another, 1995 Supp (4) SCC 465 and in
the case of State of J & K vs. Mohd.
Yaqoob Khan and others, 1992(4) SCC
167.

5. In my opinion, the aforesaid
judgements are distinguishable. No doubt
if an appeal or stay vacating application is
pending which has not been considered by
the writ Court, in that event, it is always
appropriate that the contempt proceedings
should remain in abeyance till the
disposal of the appeal or of the stay
vacating application. But that does not
mean that in each and every case, the
contempt proceedings should remain in
abeyance merely because an appeal has
been filed or that a stay vacating
application was pending. The opposite
party must show their bonafides and place
before the Court that the appeal was filed
within the period of limitation; that the
department or the Government agency
was pursuing the matter deligently before
the appropriate Court.

6. In Prithawi Nath Ram vs. State
of Jharkhand and others, 2004(7) SCC
261, the Supreme Court held that the
Court is only concerned with the question
as to whether the earlier decision which
had received finality had been complied
with or not. Similar view was again
reiterated by the Supreme Court in
Director of Education, Uttaranchal and
others vs. Ved Prakash Joshi and
others, 2005 SCC (Cri)1357.

7. In the present case, the judgment
in
writ
petition
was
delivered
on
26.3.2004. After almost one year, the
State Government granted permission to
file an appeal on 18.3.2005. As per the
information given by the learned counsel,
the Special Appeal was filed on 17.5.2005
along with a stay application, in which a
Division Bench of this Court only issued
notices on the application filed under
Section 5 of the Limitation Act. Notice on
the stay application has not been issued
by the Division Bench.

8. The law of limitation is the same
for a private citizen as well as for the
Government Authority. The Government
like
any
other
litigant
must
take
responsibility for the act or omission of its
officers. The expression "sufficient cause"
under the Limitation Act must receive a
liberal construction. A certain amount of
latitude can be given to the State
Authorities on account of its impersonal
machinery, but it does not mean that the
State and its authorities would get away
by filing a belated appeal and create a
legal alibi for the non compliance of the
order on the sole ground that the Special
Appeal has now been filed.

9. In my opinion, the filing of a
belated appeal by the opposite party was
to circumvent the order passed by the
Court. Till date, nothing has been
indicated as to what steps, the opposite
party has taken to get the application
under Section 5 of the Limitation Act
decided or get the appeal decided on
merit. At the present moment, the present
920 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appeal filed by the opposite party is
defective and the stay application does not
exist in the eyes of law. Consequently,
deferring the heariJ:!L0f the contempt
application cannot be granted to the
Opposite party.

10. In the present case, the
judgement of the Court is with regard to
the payment of post retirement benefits.
The applicant has served the opposite
party and it is his right to get the post
retirement benefits.

11. In view of the aforesaid, in the
interest of justice, and as a last resort I
grant six weeks further time to the
opposite party Nos. 1 and 2 to comply
with the order and judgment of the Court
passed in the writ petition, failing which,
the opposite party Nos. 1 and 2 would
appear in person for the framing of the
charge/ charges.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 19431 of 2003

Yamuna Prasad Rai

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

Counsel for the Petitioner:
Sri Arun Kumar

Counsel for the Respondents:
Sri Upendra Misra
S.C.

Constitution of India, Art. 311 (2)-
readwith-U.P. Financial Hand Book-Vol.
II Part II to VI-Rule 18-Dismissal of
Service-provision of automatic dismissalFive year or more absence dispite of final
direction-No
disciplinary
proceeding
initiated for long period of 4 years-nor
challenged in special Appeal-nor availed
the opportunity even on direction of the
court by order dated 6.5.2003-it would
be futile exercise-if respondents are
permitted
to
hold
a
disciplinary
proceeding-direction for reinstatement
by forthwith given-in absence of specific
pleading
about
no
where
gainfully
employment-held of the salary treating
the disputed period-as spent on leave.

Held: Para 14 and 15

Now more than four years have passed
since
this
Court
directed
the
respondents, while quashing the orders
dated 4.9.1998 to initiate disciplinary
proceedings against the petitioner, and
to
take
appropriate
decision
in
accordance with law. No such decision
has been taken so far. Further the
respondents
did
not
avail
the
opportunity given by this Court all over
again
dated
6.5.2003,
to
consider
petitioner's leave application, along with
fitness certificate dated 5.1.1989. It will
now be a futile exercise now to allow the
respondents
to
hold
a
disciplinary
enquiry after four and half years as the
respondents have failed to avail the
opportunity.

In
view
of
the
special
facts
and
circumstances of the case, the writ
petition is allowed. The respondents are
directed to reinstate the petitioner in
service forthwith without any further
delay. The entire absence shall be
treated as spent on leave. The petitioner
has not stated anywhere that he was not
gainfully employed during the period of
his absence and as such he will only be
entitled to half of the back wages. The
petitioner shall also be entitled cost of
Rs.25,000/- from the respondents as
costs of litigation. The order shall be
complied with within six weeks of its
communication to Respondent Nos. 1 &
2.