# M/S Kesarwani Zarda Bhandar v. Subhash Chandra Kesarwani

- **Citation:** (2012) 1 ILRA 173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-02
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kesarwani-zarda-bhandar-v-subhash-chandra-kesarwani-42086
- **Pages:** 3

## Headnote

Code of Civil Procedure: Section 151Restoration Application order passed on
merit-in absence of appellant-refusing
appearance
of
Advocate-unless
Bar
Council
authorise
to
appear
before
Board-and
further
rejecting
recall/restoration Application-having no
power of review-held-in view of law
developed in Grindlays Bank-case when
every tribunal has power to dismiss a
case in-default-power to restore also
there-approach of Bank not only hiper
technical but shocking-order Quasheddirection to decide restoration on merit
after issuing notice to both partiesgiven.

Held: Para-3

Through the impugned order dated
5.4.2011 restoration application seeking
recall
of
order
dated
30.09.2010
dismissing the main matter in default
has been rejected on the ground that
Board has got no power to review. The
order passed by the Copy Right Board is
patently erroneous in law. It is correct
that a judgment passed on merit can not
be reviewed by any court or authority
unless
power
of
review
is
either
174 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

specifically conferred or the authority
which has decided the matter is a Court
having plenary powers like High Court
while hearing writ petitions. However,
every tribunal has got inherent power to
dismiss a case in default in the absence
of applicant and to restore the same
afterwards if sufficient cause for absence
is made out .
Case Law discussed:
A.I.R. 1981 S.C. 606

## Text

1 All] M/S Kesarwani Zarda Bhandar V. Subhash Chandra Kesarwani

173
It is further provided that the opposite
parties shall clear off the arrears of
amount of stipend which may not have
been paid to the petitioners or may have
been stopped being paid during the
currency of the Post Graduate Courses,
within a period of two months from
today. Writ Petition No. 326 (SB) of 1997
(Dr. Manoj Rajani and Another) and writ
petition no. 329 (SB) of 1997 (Dr.
Pramod Kumar Jain) which have been
filed fresh and have come before us
today out of which writ petition no. 326
(SB) of 1997 relates to Kanpur Medical
College and writ petition no. 329 (SB) of
1997 which relates to Agra Medical
College they also stand finally disposed
of in the same manner as indicated
above".

5. We are also informed that the
said judgment has been implemented,
and thus, the petitioners would also be
entitled
to
get
the
same
benefits
irrespective of undertakings, if any,
obtained from them that they would not
claim payment of stipends during the
pursuance of present P.G. Courses
allotted in subsequent counsellings in
order of merit. It appears that the
undertakings have been given under
some compulsion which otherwise ought
not to have been asked for.

6. There is no dispute from the
State over the assertion made by learned
counsel for petitioners.

7. Thus, we dispose of the writ
petition in terms of the aforesaid
operative portion of the judgment.
---------

APPELATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2012

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J

First Appeal From Order No. - 4317 of 2011

M/S Kesarwani Zarda Bhandar

 ...Opposite Party-Appellant
Versus
Subhash Chandra Kesarwani

 ...Petitioner Respondent

Counsel for the Appelants:
Umesh Chandra Kesarwani

Counsel for the Respondents:
........................................

Code of Civil Procedure: Section 151Restoration Application order passed on
merit-in absence of appellant-refusing
appearance
of
Advocate-unless
Bar
Council
authorise
to
appear
before
Board-and
further
rejecting
recall/restoration Application-having no
power of review-held-in view of law
developed in Grindlays Bank-case when
every tribunal has power to dismiss a
case in-default-power to restore also
there-approach of Bank not only hiper
technical but shocking-order Quasheddirection to decide restoration on merit
after issuing notice to both partiesgiven.

Held: Para-3

Through the impugned order dated
5.4.2011 restoration application seeking
recall
of
order
dated
30.09.2010
dismissing the main matter in default
has been rejected on the ground that
Board has got no power to review. The
order passed by the Copy Right Board is
patently erroneous in law. It is correct
that a judgment passed on merit can not
be reviewed by any court or authority
unless
power
of
review
is
either
174 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

specifically conferred or the authority
which has decided the matter is a Court
having plenary powers like High Court
while hearing writ petitions. However,
every tribunal has got inherent power to
dismiss a case in default in the absence
of applicant and to restore the same
afterwards if sufficient cause for absence
is made out .
Case Law discussed:
A.I.R. 1981 S.C. 606

(Delivered by Hon'ble Sibghat Ullah Khan,J.)

1. Heard learned counsel for the
appellant. As the restoration application
of the appellant has been rejected as not
maintainable by Copy Right Board
through impugned order dated 5.4.2011
without even issuing notice to the
opposite party hence this appeal is being
finally decided without issuing notice to
the respondent in this appeal.

2. The main matter was dismissed in
default by the Bench of Copy Right Board
on
30.9.2010
for
the
absence
on
28.6.2010. It is very strange that three
members signed on three different dates
i.e.
on
13.9.2010,
14,9.2010
and
20.9.2010 and thereafter date 30.9.2010
was written at the bottom of the order.
Certified copy of the order is on pages 16
and 17 of compilation.

3. Through the impugned order
dated 5.4.2011 restoration application
seeking recall of order dated 30.09.2010
dismissing the main matter in default has
been rejected on the ground that Board
has got no power to review. The order
passed by the Copy Right Board is
patently erroneous in law. It is correct that
a judgment passed on merit can not be
reviewed by any court or authority unless
power of review is either specifically
conferred or the authority which has
decided the matter is a Court having
plenary powers like High Court while
hearing writ petitions. However, every
tribunal has got inherent power to dismiss
a case in default in the absence of
applicant and to restore the same
afterwards if sufficient cause for absence
is made out vide A.I.R. 1981 S.C.606
Grindlays Bank Ltd., Vs. The Central
Government Industrial Tribunal and
others.

4. Accordingly, impugned order
dated 5.4.2011 is set aside. Copy Right
Board is directed to decide the restoration
application on merit after issuing notice to
the other side.

5. Incidently the observation of the
Copy Right Board in its order dated
30.09.2010 that regarding eligibility of a
counsel to appear before the Board
clarification from Bar council of India
was not produced does not commend it
self to this Court. Unless there is specific
bar, any advocate can address Court,
Tribunal or a Board where advocates are
permitted. The observation of the Copy
Right Board to the effect that through
earlier order it "directed the counsel on
both the sides to move the Bar Council of
India for seeking true import of the rule."
is quite strange. If the rule required
interpretation, the Copy Right Board
should
have interpreted
it.
It
had
absolutely no jurisdiction or authority to
refer the matter of interpretation to the
Bar Council.

6. Appeal is accordingly, allowed as
above. Copy Right Board is directed to
decide
restoration
application
very
expeditiously.
---------
1 All] Dileep Singh Chhabra V. State of U.P. Through Chief Secy.and 2 others

175
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Service Single No. - 5135 of 2001

Dileep Singh Chhabra

 ...Petitioner
Versus
State of U.P. Through Chief Secy.and 2
others

 ...Respondents

Counsel for the Petitioner:
Sri O.P.Srivastava

Counsel for the Respondents:
C.S.C.
Sri V.K. Singh

Constitution
of
India,
Article 226Appointment on deputation-petitioners
were
initially
working
with
U.P.S.M.D.C.-on
regular
basis
but
subsequently
declared
surplus
employees in the year 1986-petitioner
were offered appointment on post of
project
officer
appointment
on
deputation purely temporarily basis till
regular candidates available and the
incumbents be repatriated to their
permanent DEPARTMENT if lost utilityon contractual basis-engagement of
one year extended from time time
lastly without further extension-can
not claim continuance as matter of
right-being appointee on deputation
does not confer any right to claim
absorption-even
appointment
on
deputation
without
interruption
of
State Govt.-SUDA is not society but
within meaning of State under Article
12 of Constitution-concept of adverse
possession
or
lean
over
post
not
available
in
service
jurisprudencecontinuation
of
wrongly
appointed
petitioners-
not
create
any
rightPetition dismissed.

Held: Para 54

That be so, at the best it is a wholly stop
gap arrangement which could have been
ceased at any point of time since such kind
of arrangement does not confer any right
upon the incumbent to hold a post wherein
recruitment/appointment is subject to
Article 14 of Constitution and other
recruitment rules. It cannot be disputed
that SUDA is a society formed by State
Government but since entire funding and
control by State Government, it satisfy
requirement
of
Article
12
of
the
Constitution being an "other authority"
and
therefore
recruitment
and
appointment therein could have been
made only consistent with Article 16 of
Constitution and other relevant provisions.
There is no concept of holding over
applicable in service matters. The Apex
Court in State of Orissa Vs. Mamata
Mohanti, JT 2011(2) SC 164 has said that
right in law exists only and only when it
has a lawful origin. The concept of adverse
possession or lien on post or holding over
is not applicable in service jurisprudence.
Therefore,
continuation
of
a
person
wrongly
appointed
or
never
lawfully
appointed on a post shall not create any
right in his favour.
Case law discussed:
AIR 1986 SC 1571; AIR 1984 SC 636; Writ
Petition No.338 (S/B) of 1997 (Uttar Pradesh
Rajya Khanij Vikas Nigam Sangharsh Samiti &
Others Vs. State of U.P. & others); 2000 (5) SCC
362; 2005 (8) SCC 394; 1990 (Supp) SCC 243;
2007 (2) SCALE 486; Ashok Kumar Pandey Vs.
State of U.P. and Others, writ petition no 52527
of 2005 decided on 3rd August 2005; 2004,3
UPLBC 2318; 2005 (1) AWL 426; 2003 (1) AWL
520; 2007 (2) SCC 138; the decision in Central
Inland Water Transport Corporation Ltd. (supra)
and Anoop Jaiswal (supra); JT 2006 (4) SC 420;
2008 (10) ADJ 283; AIR 1958 SC 36; JT 2011 (2)
SC 164

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. These two writ petitions are
connected having been filed by the same
person namely Dileep Singh Chhabra.