# Manoj Kumar Shukla v. State Of U.P. & Ors - **Citation:** (2016) 4 ILRA 41 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-30 - **Bench:** Huluvadi G. Ramesh, Raghvendra Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-shukla-v-state-of-u-p-ors-43645 - **Pages:** 5 ## Text 4 All. Manoj Kumar Shukla Vs State Of U.P. & Ors. 41 19. This provision makes it clear that the appellate court has power to pass any decree which ought to have been passed. It is admitted case of the parties that plaintiff Amarnath had executed the registered saledeed dated 20.07.2004 of his whole share in said land in favour of defendant Bhuwaneshwar Prasad Gupta for consideration of Rs. 3,40,000/- and had received Rs. 1,76,000/- as sale consideration from defendant. It is also admitted that at the time of registration of said sale-deed the defendant had agreed to pay remaining consideration of Rs. 1,64,000/- to the plaintiff within one month, but had not paid remaining consideration to plaintiff. Therefore plaintiff is entitled to receive remaining unpaid consideration from defendant. Even the firstappellate court had also held that the plaintiff-appellant is entitle to recover his loss from defendantrespondent. This finding was never challenged. 20. Conventionally, this relief is sought in every plaint that if the plaintiff is found entitled for any relief, it may be granted to him. Also, conventionally this issue is framed in every plaint that to what relief, if any, plaintiff is entitled. The purpose of these two practices is that if the plaintiff is found entitled for any relief, then the Court should and may grant such relief, without going into minor technicalities. It comes within inherent jurisdiction of the Court. In present matter also the plaintiff had prayed for grant of any relief, to which he is found entitled; and also issue no. 9 was framed by the trial Court as to what relief, plaintiff is found entitled. In the present matter it is found that plaintiff-appellant had sold his property to defendantrespondents and had received part consideration. He has been found entitled for remaining unpaid consideration, as discussed above Therefore, he is entitled for the decree of payment of unpaid consideration. Apart from it, as discussed above, this is a fit case where the powers of Court under Rule 13 of Order 41 C.P.C should be exercised. 21. Therefore, this appeal is allowed, the judgment and decree of trial court in original suit no. 115/2006 as well as of lower appellate court in Civil Appeal no. 23/2013 are set aside. The plaintiff's suit is decreed, with cost, for recovery of Rs. 1,64,000/- from defendant-respondent, with interest at the rate of 6% per annum from the date of one month from 20.o8.2004. If the decretal amount is not paid within one month, the plaintiff-appellant will be entitled to recover the same from defendant respondent to process of Court, at his cost. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.03.2016 BEFORE THE HON'BLE HULUVADI G. RAMESH, J. THE HON'BLE RAGHVENDRA KUMAR, J. Special Appeal No.- 1272 Of 2006 Manoj Kumar Shukla ...Appellant Versus State Of U.P. & Ors. ...Respondents Counsel for Appellant: 42 INDIAN LAW REPORTS ALLAHABAD SERIES Namit Srivastava, Shashi Nandan, Udayan Nandan Counsel for Respondents: C.S.C., G.C. Upadhyaya HELD: 1. The learned Single Judge erred in dismissing the writ petition solely on the ground of delay of 23 years from the date of disappearance of the appellant's father. 2. Compassionate appointment aims to alleviate *immediate hardship*, but relaxation of time limits may be justified depending on circumstances, as recognized in *Vivek Yadav v. State of U.P.* (2010 (7) ADJ 1). 3. The appellant's father, an employee of the U.P. District Co‐operative Bank, disappeared in 1983; civil death was declared in 1992, and the appellant applied in 1997. The bank authorities themselves recommended appointment. 4. The Chairman's rejection of the compassionate appointment, despite favourable recommendations, was arbitrary and ignored material factors including family hardship. 5. The reliance on *Shiv Kumar Dubey v. State of U.P.* (AIR 2015 All 47) by the respondents did not apply to the present fact situation, where the request was not belated and the authority had already recommended appointment. 6. Supreme Court precedents in *Vijaya Ukarda Athor* (2015 (3) SCC 399) and *Canara Bank v. M. Mahesh Kumar* support flexibility where minors later attain majority or where family hardship persists. 7. The learned Single Judge failed to consider that the bank had initially approved compassionate appointment, and the family remained in crisis. 8. Consequently, the Single Judge's order dated 09.05.2006 and the Chairman's refusal were quashed. 9. The appellant may file a fresh representation within one month; the competent authority must decide the same within two months, in accordance with law and the Court's observations. Case Law Discussed: 1. Vivek Yadav v. State of U.P., 2010 (7) ADJ 1. 2. Shiv Kumar Dubey v. State of U.P., AIR 2015 All 47. 3. Vijaya Ukarda Athor v. State of Maharashtra, 2015 (3) SCC 399. 4. Canara Bank v. M. Mahesh Kumar, (2015) SCC. (Delivered by Hon'ble Huluvadi G. Ramesh, J. & Hon'ble Raghvendra Kumar, J.) 1. By means of this Special Appeal, the appellant has prayed for setting aside the judgment and order dated 9.5.2006 passed by Hon'ble Single Judge in Civil Misc. Writ Petition No.52038 of 2005, dismissing the writ petition of the appellant/petitioner. 4 All. Manoj Kumar Shukla Vs State Of U.P. & Ors. 43 2. In the case in hand, the appellant's father had been discharging duties as Manager with U. P. District Co-operative Bank Ltd, Allahabad and appellant's father disappeared on 11.6.1983. Appellant and his family members after waiting for some reasonable time applied for succession certificate presuming his civil death and it transpires that the succession certificate was issued on 22.2.1992 and subsequently thereafter the appellant applied for grant of compassionate appointment on 14.10.1997. Appellant's case was considered in the meeting held on 29.10.1997 and it was resolved to provide compassionate appointment to the appellant. However, when the appellant was asked to produce medical certificate, he appeared before the medical officer and obtained the certificate. Respondent no.3 i.e. Sachiv/Maha Prabandhak, U. P. Sahkari Sewa Sansthagat Sewa Mandal, Lucknow sent a letter to respondent no.2 i.e. Adyaksha, U. P. Sahkari Sewa Sansthagat Sewa Mandal, Lucknow for obtaining approval with regard to compassionate appointment of the appellant. Since then no action was taken, the appellant filed writ petition before the learned Single Judge. The learned Single noted that there is inordinate delay and the objective of providing compassionate appointment is to save the family which is in crisis but 23 years have elapsed after the father of appellant/petitioner has disappeared and, accordingly, dismissed the writ petition stating that there is no good ground for compassionate appointment after 23 years. Hence, this Special Appeal is before us. 3. Heard learned counsel for the appellant, learned counsel for the respondent as well as learned Standing Counsel and perused the record. 4. Learned counsel for the appellant has placed reliance upon the Division Bench judgment of this Court passed in the case of Vivek Yadav vs State of U. P. and others, 2010 (7) ADJ 1. Referring to the U. P. Recruitment of Dependants of Government Servants Dying-in-Harness Rules, 1974-Rule 5, this Court has held that taking into consideration that the mother of appellant was illiterate, appellant was minor though the elder son and there were elder sisters. The proviso to Rule 5 provides that it must normally be exercised as for the purpose of dealing with the cases in a just and equitable manner. Looking into the facts of the case, the Division Bench held that the appellant had made out a case for invocation of the power is vested in the authority to waive the time for moving the application. The impugned order of the Single Judge was set aside and relaxation was given. 5. Per contra, learned counsel appearing for the respondent referring to a full bench judgment of this Court in the case of Shiv Kumar Dubey vs State of U. P. and others reported in AIR 2015 Allahabad 47 wherein certain guidelines have been laid down by this Court and any relaxation cannot be granted or extended. It is also to contend that the provisions for grant of compassionate appointment do not constitute a reservation of a post in favour of a member of the family of the deceased employee. Hence, there is no general right which can be asserted to the effect that a member of the family who was a minor at the time of death would be entitled to claim compassionate appointment after attaining majority. Accordingly, the learned counsel for the respondent sought to contend that no error was committed by the learned Single Judge in rejecting the application of the appellant/petitioner for compassionate appointment. 44 INDIAN LAW REPORTS ALLAHABAD SERIES 6. Having heard learned counsel for the respective parties and also having noted the judgment of the Hon'ble Apex Court in the case of Vijaya Ukarda Athor vs. State of Maharashtra reported in 2015 (3) SCC 399 wherein law has been laid down with respect to need for proper consideration of facts and applicable norms, including changed norms. In para 11 of the said judgment the Hon'ble Apex Court has noted that the appellant is the daughter through the first wife and respondent no.3 is the son through the second wife of the deceased, who died on 18.6.1997. Appellant's mother submitted application on 29.12.1997 stating that her daughter i.e. appellant who is aged 17 years and then a minor studying in 10th standard should be given compassionate appointment when she attains majority. According to the appellant after she attained majority she has submitted another application dated 19.3.1998, seeking compassionate appointment; thereafter the appellant was married in the year 2009. This factual situation of the matter was considered and the matter was remitted back to be considered afresh. 7. In the judgment of the Hon'ble Apex Court in the case of Canara Bank and another vs. M. Mahesh Kumar & Others in para 15 referring to the Clause 3.2 of 1993 Scheme it has been held that in case the dependant of deceased employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is a minor, the bank would keep the appointment, open till the minor attains the majority. 8. The fact in the said rulings provide therein that till the age of attaining majority by the minor dependant, the time is relaxed to submit an application. In the case in hand, the appellant is said to be the only son of the deceased out of three sisters and although he has been offered appointment on compassionate ground by the bank authorities, the same was not considered and approved by the Chairman. In the facts and circumstances of the case, the filing of the application for compassionate appointment by the appellant does not appear to be belated one and moreover, the Manager and other authorities have taken decision to offer compassionate appointment to the appellant, which was finally rejected by the Chairman. The circumstance has not been considered by the learned Single Judge that after looking into the facts of the case the benefit of dying-inharness may be given to the family of deceased which is in crisis. In the case in hand, the deceased died leaving behind three daughters and one son and they have not been provided compassionate appointment. The learned Single Judge has ignored the explanation offered by the learned counsel for the appellant/petitioner that still the family of deceased was in crisis and he would not have been denied the eligibility to compassionate appointment. The respondent bank at the level of the Bank Manager and other authorities after considering the facts of the case agreed to provide the benefit of compassionate appointment to the appellant, but the same has been rejected by the Chairman of the Bank. 9. In such circumstance, the impugned order passed by the learned Single Judge dated 9.5.2006 as well as the impugned order not approving the appointment recommended by the bank manager are set aside and it is for the appellant to make a fresh representation within one month from the date of receipt of this order. If such a representation is made by the appellant, the 4 All. Lakhraj & Ors. Vs Chandar & Ors. 45 respondent authority shall consider and shall do the needful to decide the same in the light of aforesaid observations as well as the observations of the Hon'ble Apex Court in the above cited judgments within two months. 10. According, this Special Appeal is disposed of. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 04.04.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 1287 Of 1988 Lakhraj & Ors. ...Appellants Versus Chandar & Ors. ...Respondents Counsel for Appellants: S.K. Verma, Siddhartha Varma Counsel for Respondents: M.A. Zaidi, Abbas Zaidi, O.P. Chaurasia, R.S. Ram HELD Where ownership of the disputed property is proved in favour of the plaintiff, mere illegal possession of the defendant does not defeat the plaintiff's right to recover possession, particularly when adverse possession is not established. A suit initially filed for permanent injunction can validly result in a decree for delivery of possession, if facts on record establish that the plaintiff is the true owner and the defendant is in unauthorized possession. Order XLI Rule 33 CPC confers wide discretionary power upon the appellate court to pass such decree or order which ought to have been passed, even if: no appeal or cross-objection has been filed by the successful party, and the relief ultimately granted was not expressly decreed by the trial court. The appellate court can mould the relief in favour of the respondent to ensure complete justice, provided the foundational facts are proved and the relief flows naturally from the pleadings. Absence of a specific prayer for possession is not fatal, where: