# Dr. J.S. Yadav v. Dr. Anil Kumar Upadhyay & Ors

- **Citation:** (2022) 4 ILRA 353
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-27
- **Case number:** Special Appeal No. 110 of 2022
- **Bench:** Rajesh Bindal, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-j-s-yadav-v-dr-anil-kumar-upadhyay-ors-48330
- **Pages:** 11

## Headnote

A. Contempt of Court Act, 1971 - Sections
12 & 20 - Order could not be complied with,
however an order dismissing the contempt
proceeding as it become infructuous was
passed- An application to recall this order
was filed - Maintainability of application
challenged - Jurisdiction of contempt court,
extent thereof - Order dismissing contempt
as infructuous was recalled - Validity
challenged - Held, the learned Single Judge
rightly passed the order dated 02.12.2021
Ex-debito justitiae. The inherent powers of
the Court can very well be utilized to undo a
wrong and ensure that the path of justice
remains un-polluted and the orders passed
by it are taken to its logical conclusion,
which in turn reinforces the faith of the
public. (Para 34)
B. Constitution of India - Article 215 -
Plenary jurisdiction - Court of record -
Power of High Court to punish for contempt.
Extent of - Source explained - Held, High
Court is a court of plenary jurisdiction. The
High Court being the court of record has the
power to punish for contempt under Article
215 of the Constitution of India. A court of
record being a court of superior jurisdiction
is entitled to consider the question of its
own jurisdiction raised before it. Article 215
specifically confers upon the Court of record
such powers including the power to punish
for contempt of itself. (Para 20)
C. Practice and procedure - Order passed by
the Court of law, compliance thereof -
Liability not to leave any order to become a
futile order - Public faith in judicial system,
liability to maintain it - Held, the Courts of
law do not pass futile orders- Once an order
is passed, the same is binding on the parties
and must be capable of being executed and
complied with - The orders passed by the
Court have to be taken to their logical
conclusion so that the faith of the public at
large remains intact and the orders of the
Court are not to be taken lightly by those
who are bound to comply with the same.
(Para 23)
D. Maxim 'Actus Curiae neminem gravabit'
- Meaning and scope - It means that the
act of the Court shall prejudice no man -
The High Court being a court of record by
its very constitution and composition is
invested with inherent powers. All courts
are vested with inherent powers to undo a
wrong which may have occurred on
account of a mistake of the Court causing
prejudice to a party. (Para 25)
Special Appeal dismissed. (E-1)
List of Cases cited :-

## Text

4 All. Dr. J.S. Yadav Vs. Dr. Anil Kumar Upadhyay & Ors.
353
----------
(2022)04ILR A353
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.04.2022

BEFORE

THE HON'BLE RAJESH BINDAL,C.J.
HON'BLE JASPREET SINGH, J.

Special Appeal No. 110 of 2022
(Arising out of Contempt Petition No. 716 of
2004)

Dr. J.S. Yadav ...Appellant
Versus
Dr. Anil Kumar Upadhyay & Ors.
 ...Respondents

Counsel for the Appellant:
Mr. Amit Bose, Senior Advocate with Mr
Abhishek Bose, Advocate

Counsel for the Respondents:
Sri Vishal Kumar Upadhyay

A. Contempt of Court Act, 1971 - Sections
12 & 20 - Order could not be complied with,
however an order dismissing the contempt
proceeding as it become infructuous was
passed- An application to recall this order
was filed - Maintainability of application
challenged - Jurisdiction of contempt court,
extent thereof - Order dismissing contempt
as infructuous was recalled - Validity
challenged - Held, the learned Single Judge
rightly passed the order dated 02.12.2021
Ex-debito justitiae. The inherent powers of
the Court can very well be utilized to undo a
wrong and ensure that the path of justice
remains un-polluted and the orders passed
by it are taken to its logical conclusion,
which in turn reinforces the faith of the
public. (Para 34)
B. Constitution of India - Article 215 -
Plenary jurisdiction - Court of record -
Power of High Court to punish for contempt.
Extent of - Source explained - Held, High
Court is a court of plenary jurisdiction. The
High Court being the court of record has the
power to punish for contempt under Article
215 of the Constitution of India. A court of
record being a court of superior jurisdiction
is entitled to consider the question of its
own jurisdiction raised before it. Article 215
specifically confers upon the Court of record
such powers including the power to punish
for contempt of itself. (Para 20)
C. Practice and procedure - Order passed by
the Court of law, compliance thereof -
Liability not to leave any order to become a
futile order - Public faith in judicial system,
liability to maintain it - Held, the Courts of
law do not pass futile orders- Once an order
is passed, the same is binding on the parties
and must be capable of being executed and
complied with - The orders passed by the
Court have to be taken to their logical
conclusion so that the faith of the public at
large remains intact and the orders of the
Court are not to be taken lightly by those
who are bound to comply with the same.
(Para 23)
D. Maxim 'Actus Curiae neminem gravabit'
- Meaning and scope - It means that the
act of the Court shall prejudice no man -
The High Court being a court of record by
its very constitution and composition is
invested with inherent powers. All courts
are vested with inherent powers to undo a
wrong which may have occurred on
account of a mistake of the Court causing
prejudice to a party. (Para 25)
Special Appeal dismissed. (E-1)
List of Cases cited :-
1. State Vs Baldev Raj; 1991 SCC Online
(Allahabad)1070;
2. Durga Nagpal Vs Committee of Management,
Patronage Institute of Management Studies &
ors.; 2013 SCC Online All 13298
3.
Mahavir
Prasad
Verma
Vs
Central
AdministrativeTribunal, Lucknow & ors.; 2013
SCC Online All13904
4. South Eastern Coalfields Ltd. Vs St. of M.P.;
(2003) 8 SCC 648
354 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Ram Chandra Singh Vs Savitri Devi & ors.;
(2003) 8 SCC 319
6. Indian Bank Vs Satyam Fibres (India) Pvt.
Ltd.; (1996) 5 SCC 550
7.
United
India
Insurance
Co.
Ltd.
Vs
RajendraSingh; (2000) 3 SCC 581
8. Hamza Hazi Vs St. of Kerala; (2006) 7 SCC
416
(Delivered by Hon'ble Jaspreet Singh, J.)

1. This instant intra-court appeal has
been preferred under Chapter VIII Rule 5
of the Allahabad High Court Rules, 1952
against the order dated 02.12.2021 passed
by the learned Single Judge whereby two
applications
for
recall
bearing
C.M.
Application No. 80976 of 2021 for recall of
order
dated
26.04.2012
and
C.M.
Application No. 160117 of 2021 for recall
of order dated 28.08.2012 passed in
Contempt Case No. 716 of 2004 (Ajay
Kumar Pandey and 29 others Vs. Dr. J.S.
Yadav) have been allowed and as a result
the contempt proceedings have been
revived against the appellant.

2. Mr. Amit Bose, learned Senior
Counsel assisted by Mr. Abhishek Bose has
assailed the impugned order primarily on
two grounds:-

(i) It is urged that the learned
Single Judge had no jurisdiction to recall
the orders, inasmuch as, once the contempt
application is disposed of/dismissed, there
is no provision for recall of such order. It is
urged that in the instant case by means of
order dated 28.8.2012 the contempt petition
was dismissed as infructuous and the
learned Single Judge while exercising
powers of the Contempt Judge had no
power to recall the said order.

(ii) It is also urged that the said
application for recall was also hit by
Section 20 of the Contempts of Court Act
and for the said reason as well the
application for recall was not maintainable
as by recalling the order on application
which otherwise had been rendered otiose
could not be revived.

3. Learned counsel for the respondent
on the other hand has submitted that an
order was passed by the Writ Court which
was affirmed in Special Appeal and almost
20 years have lapsed but the order has not
been complied with and for one reason or
the other, the appellant has been raising
technical objections only to ensure that the
order passed by the Court is not complied
with.

4. It is further urged that the necessity
to file the recall application arose on the
ground that on mis-apprehension of facts,
the contempt-petition filed by the petitioner
was dismissed as infructuous. Elaborating
his submissions, it is urged that the
contempt petition was preferred by 29
petitioners, however, only in respect of two
such
petitioners
who
were
being
represented by a counsel namely Shailendra
Singh Chauhan made a statement that the
parties have entered into an amicable
settlement and the learned Contempt Judge
relying upon the aforesaid statement
dismissed the contempt petition as a whole.

5. It is also submitted that the counsel
who had made a statement before the
Contempt Court was not representing the
other contempt-petitioners and at best the
statement could have been accepted only in
respect of two such contempt-petitioners
who did not wish to press the contempt
petition but in the garb thereof the petition
of the remaining parties could not be
dismissed as their right to prosecute the
contempt petition was unhampered.
4 All. Dr. J.S. Yadav Vs. Dr. Anil Kumar Upadhyay & Ors.
355

6. It is further submitted that the
private respondents had preferred a Special
Leave Petition before the Apex Court and
where liberty was granted to approach High
Court and in furtherance thereof initially a
fresh contempt was filed which was
thereafter withdrawn and an application for
recall was filed which after hearing the
parties has been allowed by the learned
Single Judge and in the aforesaid facts and
circumstances where the order passed by
the Writ Court has yet not been complied
with, it is not open for the appellant to raise
such
technical
objections
and
even
otherwise the order of recall has not
prejudiced any party and the appellant has a
right of raising the objections on merits
before the Contempt Court. It is urged that
if an order has been passed on misrepresentation or on incorrect facts, the
Court is duly vested with ample powers to
recall such an order as an act of Court
cannot prejudice any party. In view of the
aforesaid, the appeal deserves to be
dismissed.

7. The Court has heard the learned
counsel for the parties and also perused the
material available on record.

8. Before adverting to the respective
submissions, it will be worthwhile to take a
glance at the facts leading up to the passing
of the impugned order of recall dated
02.12.2021.

9. The matter in controversy relates to
the admissions of students in pursuance of
pre-medical test held in the year 1998. 56
students were admitted in the First Year
Course of Bachelor of Dental Science in
Chaudhary Multan Singh Memorial Dental
College on the basis of marks obtained by
them. Some of such students were granted
the admission on the basis of their merit
obtained in the pre-medical test but some of
the students were admitted against the
management quota. Later, it revealed that
Chaudhary Multan Singh Memorial Dental
College, Tundla did not have the approval
from the Dental Council of India to admit
the students after the first year and it is in
the aforesaid backdrop that the aggrieved
students preferred several writ petitions
before this Court.

10. A bunch of writ petitions bearing
No. 1312 (MS) of 2001; 1313 (MS) of
2001; 1909 (MS) of 2001 and 1915 (MS)
of 2001 were decided by the learned Single
Judge of the Court by means of judgment
and order dated 06.08.2001. This judgment
came to be challenged in Special Appeal
No. 347 of 2001 which was connected with
another Special Appeal bearing No. 368 of
2001. Both the Special Appeals were
decided by means of the judgment dated
09.11.2001. In the Special Appeal preferred
by the Director/Secretary of Chaudhary
Multan Singh Memorial Dental College,
Tundla, District Firozabad, the Division
Bench of the Court while dismissing the
appeal
directed
the
Authorities
of
Chaudhary Multan Singh Memorial Dental
College to refund the fee of 60 students
who had deposited the fee either for the
free
seats
or
the
seats
under
the
Management Quota.

11. It is this order passed by the
Division Bench in Special Appeal dated
09.11.2001
which
was
pressed
for
compliance in Contempt Petition No. 716
of 2004 as the Authorities of Chaudhary
Multan Singh Memorial Dental College
failed to refund the fee.

12. The record further reflects that the
Contempt Petition remained pending since
2004. On 26.04.2012 the contempt petition
356 INDIAN LAW REPORTS ALLAHABAD SERIES
was dismissed having become infructuous.
The order passed by the Contempt Court
dated 26.04.2012 reads as under:-

"In pursuance to the earlier order
dated 03.04.2012 passed by this Court, the
contemnor Dr. J.S. Yadav as well as Sri
Vivek Chauhan & Sri Amit, petitioners are
present in person.

Sri Shailendra Singh Chauhan,
learned counsel for the petitioners as well
as Sri Amit Bose, learned counsel for the
contemonor
jointly
submit
that
the
settlement between the parties have reached
amicably and now no contempt exists.
Hence, they pray that the contempt petition
may kindly be dismissed being infructuous.
Notice
for
personal
appearance
is
discharged.

In view of above, the contempt
petition is dismissed being infructuous. "

13. Thereafter C.M. Application No.
51213 of 2012 and 57607 of 2012 were filed
by the remaining petitioners seeking recall of
the order dated 26.04.2012. The said
application for recall was rejected by the
Contempt Court noticing that the counsel for
the petitioners had given a statement in the
open Court that the present contempt petition
had become infructuous as the parties had
entered into an amicable settlement. Since the
said order was passed in open Court, hence,
there was no reason to recall the order,
consequently,
the
applications
were
dismissed.

14. The private respondents being
aggrieved preferred a Special Leave Petition
before the Apex Court which came to be
disposed of by means of order dated
05.07.2019 granting liberty to the petitioners
before the Apex Court to move the High
Court. The order passed by the Apex Court
dated 05.07.2019 reads as under:-

" Heard the learned counsel for the
parties.

The order has been passed by the
High Court on the basis of the submissions
made by the learned counsel that there is a
settlement between the parties and now no
contempt exists.

It is submitted that the matter was
not settled completely and the order of the
High Court has not been complied with.

If that be so, the only remedy lies
with the petitioners is to approach the same
court, instead of filing a Special Leave
Petition in this court. The petitioners, if so
advised, may move the High Court in case
there is some fraud played upon them.

In view of the above, the Special
Leave Petitions are disposed of.

Pending interlocutory application
(s), if any, is/are disposed of."

15. It is thereafter that the private
respondents filed a fresh Contempt Petition
bearing No. 878 of 2021 which was
withdrawn by them with liberty to pursue
the remedy as available to the respondents
by filing the Recall Application.

16. It is in the aforesaid backdrop that
the recall applications were moved by the
private respondents which have been
considered. After assessing the entire
matter, the learned Single Judge allowed
the applications for recall and directed the
appellant to appear before the Court on
14.12.2021 for framing of charges.

17. The foremost issue that requires
consideration
is
whether
the
said
application for recall was maintainable
before the learned Single Judge. The
learned Senior Counsel Mr. Amit Bose
making his submissions has urged that once
the contempt petition was dismissed and
the notices were discharged, the Contempt
4 All. Dr. J.S. Yadav Vs. Dr. Anil Kumar Upadhyay & Ors.
357
Court does not have the jurisdiction to
recall the order and as such the order
passed by the learned Single Judge is
beyond jurisdiction, accordingly, is liable to
be set aside.

18. In support of his submissions, he
has relied upon a Division Bench decision
of this Court in the case of :-

(i) State vs. Baldev Raj in 1991
SCC Online (Allahabad) 1070;

(ii) Durga Nagpal Vs. Committee
of Management, Patronage Institute of
Management Studies and others in 2013
SCC Online All 13298

(iii) Mahavir Prasad Verma Vs.
Central Administrative Tribunal, Lucknow
and others in 2013 SCC Online All 13904.

19. Placing reliance on the aforesaid
decisions, it is urged that it is no more open
to contend that no power to recall has been
conferred on the Court under the Contempt
of Court Act, consequently, upon the
dismissal of the application for contempt,
in view of the statement made by the
learned counsel for the respondents that the
parties had arrived at a settlement the recall
application was not maintainable.

20. It will be apropos to examine and
look at the entire scenario with a multifocal
lens. It is now well settled that the High
Court is a court of plenary jurisdiction. The
High Court being the court of record has
the power to punish for contempt under
Article 215 of the Constitution of India. A
court of record being a court of superior
jurisdiction is entitled to consider the
question of its own jurisdiction raised
before it. Article 215 specifically confers
upon the Court of record such powers
including the power to punish for contempt
of itself.

21. The contempt jurisdiction of the
High Court is not only to ensure the
compliance of the orders passed by the
Court but also to strike at such acts which
tend to adversely affect the administration
of justice or has a tendency to impede the
course of justice which may shake public
confidence in the judicial institution.

22. Thus, it can take note of such act
and pass such orders under the contempt
jurisdiction where the acts adversely affects
the majesty of law or dignity of the Court.
However, at the same time, it must be well
remembered that the jurisdiction is not to
protect the dignity of an individual judge
but to protect the administration of justice
from being maligned.

23. The Courts of law do not pass
futile orders. However, once an order is
passed, the same is binding on the parties
and must be capable of being executed and
complied with. It will be of no value if the
Court is unable to get its orders complied
with or else, the public shall loose faith and
it would reflect most inappropriately on the
judicial system. Thus, the orders passed by
the Court have to be taken to their logical
conclusion so that the faith of the public at
large remains intact and the orders of the
Court are not to be taken lightly by those
who are bound to comply with the same.

24. There is another angle with which
the issue at hand can be viewed with.
Whether the statement given by a counsel
for some of the parties can be treated to be
a statement on behalf of all even though
they are not represented by such counsel
and what would be its effect ?

25. It will be valuable to refer to the
maxim
"Actus
Curiae
neminem
gravabit". In simple words, it means that
358 INDIAN LAW REPORTS ALLAHABAD SERIES
the act of the Court shall prejudice no man.
The High Court being a court of record by
its very constitution and composition is
invested with inherent powers. All courts
are vested with inherent powers to undo a
wrong which may have occurred on
account of a mistake of the Court causing
prejudice to a party.

26. Applying the aforesaid principles,
the
Apex
Court
in
South
Eastern
Coalfields Ltd. Vs. State of M.P. (2003) 8
SCC 648 in para 28 held that the principle
"that no one shall suffer by an act of the
Court" embraces within its sweep all such
acts as to which the Court may form an
opinion in any legal proceedings that the
Court would not have so acted had it been
correctly appraised of the fact of law.

27. A perusal of the order dated
26.04.2012 would indicate that the said
order was passed on the basis of statement
made by Sri Shailendra Singh Chauhan,
counsel appearing for the petitioners and
Mr. Amit Bose, learned counsel for the
contemnor. It could not be disputed by the
learned Senior Counsel for the appellant
that the settlement, reference of which is
made in the order dated 26.04.2012 did not
relate to all the contempt petitioners rather
it was confined to only two of such
contempt petitioners. Mr. Bose also could
not dispute the fact that Mr. Shailendra
Singh
Chauhan
whose
statement
is
recorded in the order dated 26.04.2012 by
the Contempt Court did not represent all
the said contempt petitioners and the
statement
of
Mr.
Shailendra
Singh
Chauhan, learned counsel could not relate
to all the contempt-petitioners.

28. The order passed on 28.08.2012
dismissing the recall applications by the
Contempt Court, as already reproduced
hereinabove first, would indicate that it did
not enter into the merits of the matter as to
whether the statement as given by Mr.
Chauhan on behalf of all the contemptpetitioners was valid and actually whether
the alleged settlement was between all the
contempt-petitioners and the contemner. It
also could not be disputed that the Apex
Court in its order dated 05.07.2019 had
granted liberty to the respondents to
approach the High Court in case if some
fraud was played upon them.

29. At this stage, it will be apposite to
evaluate the effect of the statement given
by the said counsel who was not authorized
to make the statement on behalf of all the
contempt petitioner and in effect it could
not bind such parties. It is not even the case
of the appellant that amount of fee had
been refunded to the respondents. He has
not even apprised the Court about the
settlement arrived at between the parties

30. The meaning of the word fraud
and misrepresentation has been noticed by
the Apex Court in Ram Chandra Singh Vs.
Savitri Devi and others reported in (2003)
8 SCC 319 wherein paras 16 to 22 it has
been held as under:-

16. Fraud is a conduct either by
letter or words, which induces the other
person or authority to take a definite
determinative stand as a response to the
conduct of the former either by word or
letter.

17. It is also well settled that
misrepresentation itself amounts to fraud.
Indeed, innocent misrepresentation may
also give reason to claim relief against
fraud.

18.
A
fraudulent
misrepresentation is called deceit and
consists in leading a man into damage by
4 All. Dr. J.S. Yadav Vs. Dr. Anil Kumar Upadhyay & Ors.
359
wilfully or recklessly causing him to
believe and act on falsehood. It is a fraud in
law if a party makes representations which
he knows to be false, and injury ensues
therefrom although the motive from which
the representations proceeded may not have
been bad.

19. In Derry v. Peek [(1889) 14
AC 337 : (1886-90) All ER Rep 1 : 58 LJ
Ch 864 : 61 LT 265 (HL)] it was held:

In an action of deceit the plaintiff
must prove actual fraud. Fraud is proved
when it is shown that a false representation
has been made knowingly, or without belief
in its truth, or recklessly, without caring
whether it be true or false.

A false statement, made through
carelessness and without reasonable ground
for believing it to be true, may be evidence
of fraud but does not necessarily amount to
fraud. Such a statement, if made in the
honest belief that it is true, is not fraudulent
and does not render the person making it
liable to an action of deceit.

20. InKerr on Fraud and Mistake,
at p. 23, it is stated:

"The
true
and
only
sound
principle to be derived from the cases
represented by Slimv. Croucher [(1860) 1
De GF & J 518 : 29 LJ Ch 273 : 2 LT 103 :
45 ER 462] is this: that a representation is
fraudulent not only when the person
making it knows it to be false, but also
when, as Jessel, M.R., pointed out, he
ought to have known, or must be taken to
have known, that it was false. This is a
sound and intelligible principle, and is,
moreover, not inconsistent with Derry v.
Peek [ Arising out of SLP (C) No. 20273 of
2000] . A false statement which a person
ought to have known was false, and which
he must therefore be taken to have known
was false, cannot be said to be honestly
believed in. ''A consideration of the
grounds of belief', said Lord Herschell, ''is
no doubt an important aid in ascertaining
whether the belief was really entertained. A
man's mere assertion that he believed the
statement he made to be true is not
accepted as conclusive proof that he did so.'
"

21. In Bigelow on Fraudulent
Conveyances, at p. 1, it is stated

"If on the facts the average man
would have intended wrong, that is
enough."

It was further opined:

"This conception of fraud (and
since it is not the writer's, he may speak of
it without diffidence), steadily kept in view,
will render the administration of the law
less difficult, or rather will make its
administration more effective. Further, not
to enlarge upon the last matter, it will do
away with much of the prevalent confusion
in regard to ''moral' fraud, a confusion
which, in addition to other things, often
causes lawyers to take refuge behind such
convenient and indeed useful but often
obscure language as ''fraud upon the law'.
What is fraud upon the law? Fraud can be
committed only against a being capable of
rights, and ''fraud upon the law' darkens
counsel. What is really aimed at in most
cases by this obscure contrast between
moral fraud and fraud upon the law, is a
contrast between fraud in the individual's
intention to commit the wrong and fraud as
seen in the obvious tendency of the act in
question.

22. Recently this Court by an
order dated 3-9-2003 in Ram Preeti Yadav v
U.P. Board of High School & Intermediate
Education [(2003) 8 SCC 311 : JT 2003
Supp (1) SC 25] held: (SCC pp. 316-317,
paras 13-15)

"13. Fraud is a conduct either by
letter or words, which induces the other
person or authority to take a definite
determinative stand as a response to the
360 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct of the former either by words or
letter. Although negligence is not fraud but
it can be evidence on fraud. (See Derry v.
Peek [ Arising out of SLP (C) No. 20273 of
2000] .

14. In Lazarus Estates Ltd. v.
Beasley [(1956) 1 All ER 341 : (1956) 2
WLR 502 : (1956) 1 QB 702 (CA)] the
Court of Appeal stated the law thus: (All
ER p. 345 C-D)

''I cannot accede to this argument
for a moment. No court in this land will
allow a person to keep an advantage which
he has obtained by fraud. No judgment of a
court, no order of a minister, can be
allowed to stand if it has been obtained by
fraud. Fraud unravels everything. The court
is careful not to find fraud unless it is
distinctly pleaded and proved; but once it is
proved it vitiates judgments, contracts and
all transactions whatsoever;'

15. In S.P. Chengalvaraya Naidu
v. Jagannath [(1994) 1 SCC 1] this Court
stated that fraud avoids all judicial acts,
ecclesiastical or temporal."

31. In the aforesaid backdrop if the
statement made by Sri Chauhan is seen it
would lead the Contempt Court to satisfy
itself as to veracity of the statement
regarding the settlement arrived at between
all the contempt petitioners and the
contemnor and only once the said fact was
verified could the petition be dismissed as
infructuous. Even otherwise once the
contempt Court takes cognizance of the
matter then it is a matter between the
contemner and the Court. In this view of
the matter, it was all the more important for
the Contempt Court to have verified all the
facts before discharging the contempt
notice.

32. In the instant case, once it is not
disputed that the order passed by the
Division Bench of the year 2001 had not
been complied with, the petition could not
have become infructuous. The statement of
the counsel, which was beyond his
competence and yet made before the Court
on behalf of such contempt-petitioners who
had not entered into any settlement and it
gave an impression to the Court that all the
contempt-petitioners had settled the matter
with the contemnor, is nothing short of a
misrepresentation amounting to fraud,
especially when the settlement, if arrived
at, by only two of such contempt
petitioners could at best be not pressed on
their behalf but not on behalf of other copetitioners and the petition as a whole
ought not have been dismissed as having
become infructous.

33. It is a case where the appellant
has taken recourse to the judicial
proceedings to thwart the course of
justice and a direction which was issued
by the Division Bench in the year 2001
has not been complied with till date. This
in itself is a shocking state of affairs
which does hurts the judicial conscience
and has a deleterious effect on the public
at large.

34. In the aforesaid circumstances, the
learned Single Judge rightly passed the
order dated 02.12.2021 Ex-debito justitiae.
The inherent powers of the Court can very
well be utilized to undo a wrong and ensure
that the path of justice remains un-polluted
and the orders passed by it are taken to its
logical conclusion, which in turn reinforces
the faith of the public.

35. It will be worthwhile to notice the
observations made by the Apex Court in
Indian Bank Vs. Satyam Fibres (India)
Pvt. Ltd. (1996) 5 SCC 550 in para 20, 22
and 23, it held as under:-
4 All. Dr. J.S. Yadav Vs. Dr. Anil Kumar Upadhyay & Ors.
361

20. By filing letter No. 2775 of
26-8-1991 along with the review petition
and contending that the other letter, namely,
letter No. 2776 of the even date, was never
written or issued by the respondent, the
appellant, in fact, raised the plea before the
Commission that its judgment dated 16-111993, which was based on letter No. 2776,
was obtained by the respondent by
practising fraud not only on the appellant
but on the Commission too as letter No.
2776 dated 26-8-1991 was forged by the
respondent for the purpose of this case.
This plea could not have been legally
ignored by the Commission which needs to
be reminded that the authorities, be they
constitutional, statutory or administrative,
(and particularly those who have to decide
a lis) possess the power to recall their
judgments or orders if they are obtained by
fraud as fraud and justice never dwell
together
(Fraus
et
jus
nunquam
cohabitant). It has been repeatedly said that
fraud and deceit defend or excuse no man
(Fraus et dolus nemini patrocinari debent)

22. The judiciary in India also
possesses inherent power, specially under
Section 151 CPC, to recall its judgment or
order if it is obtained by fraud on court. In
the case of fraud on a party to the suit or
proceedings, the court may direct the
affected party to file a separate suit for
setting aside the decree obtained by fraud.
Inherent powers are powers which are
resident in all courts, especially of superior
jurisdiction. These powers spring not from
legislation but from the nature and the
constitution of the tribunals or courts
themselves so as to enable them to maintain
their dignity, secure obedience to its
process and rules, protect its officers from
indignity and wrong and to punish
unseemly
behaviour.
This
power
is
necessary for the orderly administration of
the court's business.

23. Since
fraud
affects
the
solemnity, regularity and orderliness of the
proceedings of the court and also amounts
to an abuse of the process of court, the
courts have been held to have inherent
power to set aside an order obtained by
fraud practised upon that court. Similarly,
where the court is misled by a party or the
court itself commits a mistake which
prejudices a party, the court has the
inherent
power
to
recall
its
order.
(See:Benoy Krishna Mukerjeev.Mohanlal
Goenka[AIR 1950 Cal 287] ;Gajanand Sha
v. Dayanand Thakur [AIR 1943 Pat 127 :
ILR 21 Pat 838] ; Krishnakumar v. Jawand
Singh [AIR 1947 Nag 236 : ILR 1947 Nag
190] ;Devendra Nath Sarkar v. Ram
Rachpal Singh [ILR (1926) 1 Luck 341 :
AIR 1926 Oudh 315] ;Saiyed Mohd. Raza
v.Ram Saroop [ILR (1929) 4 Luck 562 :
AIR 1929 Oudh 385 (FB)] ; Bankey Behari
Lal v. Abdul Rahman [ILR (1932) 7 Luck
350 : AIR 1932 Oudh 63] ; Lekshmi Amma
Chacki Amm v. Mammen Mammen [1955
Ker LT 459] .) The court has also the
inherent power to set aside a sale brought
about by fraud practised upon the court
(Ishwar Mahton v. Sitaram Kumar [AIR
1954 Pat 450] ) or to set aside the order
recording compromise obtained by fraud.
(Bindeshwari Pd. Chaudhary v. Debendra
Pd. Singh [AIR 1958 Pat 618 : 1958 BLJR
651] ; Tara Bai v.V.S. Krishnaswamy Rao
[AIR 1985 Kant 270 : ILR 1985 Kant
2930] .)

36. Again in United India Insurance
Co. Ltd. Vs. Rajendra Singh (2000) 3 SCC
581 in para 15 and 16, it has been held as
under:-

15. It is unrealistic to expect the
appellant Company to resist a claim at the
first instance on the basis of the fraud
because the appellant Company had at that
362 INDIAN LAW REPORTS ALLAHABAD SERIES
stage no knowledge about the fraud
allegedly played by the claimants. If the
Insurance Company comes to know of any
dubious concoction having been made with
the sinister object of extracting a claim for
compensation, and if by that time the award
was already passed, it would not be
possible for the Company to file a statutory
appeal against the award. Not only because
of the bar of limitation to file the appeal but
the consideration of the appeal even if the
delay could be condoned, would be limited
to the issues formulated from the pleadings
made till then.

16. Therefore, we have no doubt
that the remedy to move for recalling the
order on the basis of the newly-discovered
facts amounting to fraud of high degree,
cannot be foreclosed in such a situation. No
court or tribunal can be regarded as
powerless to recall its own order if it is
convinced that the order was wangled
through fraud or misrepresentation of such
a dimension as would affect the very basis
of the claim.

37. In Hamza Hazi Vs. State of
Kerala (2006) 7 SCC 416, the Apex Court
in paragraph 26 has held as under:-

26. The High Court, as a court of
record, has exercised its jurisdiction to set
at naught the order of the Forest Tribunal
thus procured by the appellant by finding
that the same is vitiated by fraud. There
cannot be any doubt that the Court in
exercise of its jurisdiction under Article
215 of the Constitution of India has the
power to undo a decision that has been
obtained by playing a fraud on the Court.
The appellant has invoked our jurisdiction
under Article 136 of the Constitution of
India. When we find in agreement with the
High Court that the order secured by him is
vitiated by fraud, it is obvious that this
Court should decline to come to his aid by
refusing the exercise of its discretionary
jurisdiction under Article 136 of the
Constitution of India. We do not think that
it is necessary to refer to any authority in
support of this position except to notice the
decision in Ashok Nagar Welfare Assn. v.
R.K. Sharma [(2002) 1 SCC 749 : 2001
Supp (5) SCR 662] .

38. The observations made by the
learned Single Judge in its order dated
02.12.2021 in paragraph 12 also amplifies
the conduct of the appellant which reads as
under:-

"12. After hearing the rival
contentions and going through the material
on record, this court finds that since the
year 2004 the petitioners are make efforts
to get the order of Special Appeal court
dated 09.11.2001 complied. They have not
been able to get any relief. The record of
the contempt petition is replete with orders
of issuance of warrants and directions for
personal appearance of opposite party but
the fact remains that the order of this court
has not been complied with. Petitioners
have been relegated to one forum to the
other but the substantial justice stands
denied to them. Opposite party no.1 has left
no stone unturned to hoodwink this court's
and has avoided compliance of this court
order for more than 20 years. This is very
lamentable and shakes the confidence of
the common man in the judicial system of
the country when the technicalities are
given precedence over substantial justice. It
is settled law that admissions made by the
counsel unauthorisedly without instructions
from his client is not binding on his client.
The Apex Court in the case of Himalayan
Cooperative Group Housing Society Vs.
Balwan Singh and others, 2015 AIR(SC)
2867 has held in para 32 as follows :-
4 All. Vimal Kumar Vs. State of U.P. & Ors.
363

32. Generally, admissions of fact
made by a counsel are binding upon their
principals as long as they are unequivocal;
where, however, doubt exists as to a purported
admission, the court should be wary to accept
such admissions until and unless the counsel or
the advocate is authorised by his principal to
make such admissions. Furthermore, a client is
not bound by a statement or admission which
he or his lawyer was not authorised to make. A
lawyer generally has no implied or apparent
authority to make an admission or statement
which would directly surrender or conclude the
substantial legal rights of the client unless such
an admission or statement is clearly a proper
step in accomplishing the purpose for which the
lawyer was employed. We hasten to add neither
the client nor the court is bound by the lawyer's
statements or admissions as to matters of law or
legal conclusions? "

39. Having noticed the facts and the law
in the preceding paragraphs now, in the
aforesaid backdrop, if the decisions relied upon
by the learned Senior Counsel for the appellant
are considered, it would indicate that in the case
of Balraj Deo (supra), the issue before the
Division Bench was that the contemner was
convicted by the Court and he filed a recall
application instead of filing an appeal in terms
of Section 19 of the Contempts of Court Act. It
is in the aforesaid backdrop that the said recall
application was rejected and thus on the face of
it, the said decision does not come to the rescue
of the appellant and is clearly distinguishable.

40. Durga Nagpal's case (supra) was a
case where after the contempt proceedings were
dropped and the application for modification of
the final judgment was moved and in the
aforesaid backdrop, it was held that the
contempt Judge did not have the power to
revive its own order, however, the facts of the
said case are also at variance to the case at hand,
hence, the said decision also does not help the
appellant especially when in the present case
the element of fraud and misrepresentation is
involved which in turn activates the maxim
"Actus Curiae neminem gravabit".

41. In Mahavir Prasad's case (Supra), it
would indicate that in the said case, an
application for review/recall was moved which
was rejected by the Central Administrative
Tribunal in default. This order was assailed
before the High Court in writ jurisdiction which
was quashed and the contempt petition was
restored to its original number directing the
Tribunal to decide the same after bringing the
successors in the office on record, thus, the facts
of the case are quite different to the facts of the
case, consequently, the said decision does not
apply to the instant case.

42. In light of the aforesaid detailed
discussions, this Court has no hesitation to hold
that the impugned order dated 02.12.2021 does
not suffer from any error which may persuade
this Court to interfere, accordingly, the Special
Appeal is dismissed.

43. In the facts and circumstances, there
shall be no order as to costs.
----------
(2022)04ILR A363
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 153 of 2022

Vimal Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Mr. Dhirendra Kumar Singh Rathor