# Mata Prasad Tiwari v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 770
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-10
- **Case number:** Civil Misc. Review Application No. 24 of 2023
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mata-prasad-tiwari-v-state-of-u-p-ors-50619
- **Pages:** 7

## Headnote

A. Civil Law - Review - Allahabad High
Court Rules, 1952 - Chapter VII, Rule 1 -
Pronouncement of judgment - Review on
the ground that as the complete judgment
was not pronounced in open Court, it
becomes legally unsustainable - Held: The
aforesaid Rule provides that after a case
7 All. Mata Prasad Tiwari Vs. State of U.P. & Ors.
771
has been heard, the judgment may be
pronounced either at once or on some
future date. This Rule is a rule of
procedure and does not confer any
substantive right on any party. The Rule
does
not
prescribe
any
adverse
consequence for the judgment not being
entirely
pronounced
in
open
Court
immediately. Aforesaid procedural Rule is
merely directory in nature. At times the
Courts pronounce the gist of the judgment
and the outcome of the case in open
Court, while the detailed judgment is
dictated in the Chamber to utilize the time
for hearing and deciding other cases in the
interest of judicial work. Court rejected
the submission of the Review-Applicant.
(Para 3, 4)
B. Civil Law - Review - Constitution of
India,1950 - Articles 217 & 224 - Article
217, Appointment and conditions of the
office of a Judge of a High Court - Article
224, Appointment of Additional and Acting
Judges - Review on the ground that the
Special Appeal was heard by a Division
Bench consisting of two Judges, one of
whom was appointed under Article 217 of
the Constitution of India, whereas the
other Judge was appointed under Article
224 of the Constitution of India, thus the
formation of the Bench was against the
spirit of the Constitution of India - Held:
All Judges are duty-bound to perform the
judicial work allotted to them and exercise
their jurisdiction accordingly, irrespective
of the constitutional provision under
which they have been appointed. So far as
judicial powers and duties of Judges are
concerned, there is no difference between
Judges appointed under Article 217 of the
Constitution
of
India
and
Judges
appointed under Article 224. Court found
no substance in the second submission of
the Review-Applicant, and rejected the
same. (Para 10, 13, 17)
C. Civil Law - Precedents - Only the ratio
decidendi of a judgment is binding as a
precedent, not the order passed in a
case - Review - Review on the ground
that the judgment and order passed in
Writ Petition No. 4963 (S/S) of 2015,
wherein persons who had not worked
for a single day were treated as regular
employees and were paid post-retiral
dues and pension, was not considered by
the Division Bench while deciding the
Special Appeal - Held: Judgments passed
in
that
case
will
not
be
binding
precedents
unless
the
question
of
eligibility of the persons for being paid
salary for the period they had not
worked was decided in those judgments,
because it is a well-settled principle of
law of precedents that only the ratio
decidendi of a judgment is binding as a
precedent, not the order passed in a
case. (Para 28)
Dismissed. (E-5)
List of Cases cited:
State of Rajasthan Vs Prakash Chand, (1998)
1 SCC 1.

## Text

770 INDIAN LAW REPORTS ALLAHABAD SERIES
the provisions of Section 145 of CPC,
which provides enforcement of liability of
surety and Section 145(II) of CPC provides
furnishing of security of property by sale,
which may be sold out to the extent of
security, therefore, it is apparently clear that
surety should have been of the nature,
which may be sold out as and when
required.

10. So far as present controversy is
concerned, surety so placed before the
Court is photocopy of the sale deed on the
basis of that, no sale of property can be
made, therefore, such surety cannot be
accepted.

11. So far as second argument about
photocopy of the document can be accepted
as secondary evidence is concerned, it is
not a case of evidence, but a case of surety
and it should have been of such nature that
may be sold out at any point of time either
under the orders of Court or as per
circumstances. Certainly, on the basis of
photocopy of the sale deed, no sale
proceeding can be executed, therefore,
photocopy of sale deed cannot be accepted
as surety. Further, judgments so relied by
counsel for petitioners only deals with the
acceptances
of
secondary
evidence,
therefore, the same are having no relevance
in the present controversy.

12.

Considering
the
facts
so
mentioned here-in-above, this Court is of
the firm view that photocopy of the sale
deed cannot be accepted as surety for the
purpose of Section 17 of Act, 1887 read
with Section 145 of CPC.

13. Third issue was about legibility of
document. Once Court is of the opinion
that photocopy of sale deed cannot be
accepted as surety, therefore, there is no
occasions for the Court to give its finding
about the legibility of documents.

14. So far as last argument about
Order 5 Rule 20 of CPC is concerned, law
is very well settled that in case of
deficiency of notice, it has to be raised by
the petitioners on the very first instance of
the rebuttal and in the present case, even in
application under Order 9 Rule 13 of CPC,
no such averment has been made, therefore,
at this stage, same can not be accepted.

15. Under such facts of the case,
petition lacks merit and is accordingly
dismissed.

16. No order as to costs.
----------
(2023) 7 ILRA 770
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.07.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Civil Misc. Review Application No. 24 of 2023

Mata Prasad Tiwari ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Rama Kant Dixit, Asok Pande

Counsel for the Opposite Parties:
A. Civil Law - Review - Allahabad High
Court Rules, 1952 - Chapter VII, Rule 1 -
Pronouncement of judgment - Review on
the ground that as the complete judgment
was not pronounced in open Court, it
becomes legally unsustainable - Held: The
aforesaid Rule provides that after a case
7 All. Mata Prasad Tiwari Vs. State of U.P. & Ors.
771
has been heard, the judgment may be
pronounced either at once or on some
future date. This Rule is a rule of
procedure and does not confer any
substantive right on any party. The Rule
does
not
prescribe
any
adverse
consequence for the judgment not being
entirely
pronounced
in
open
Court
immediately. Aforesaid procedural Rule is
merely directory in nature. At times the
Courts pronounce the gist of the judgment
and the outcome of the case in open
Court, while the detailed judgment is
dictated in the Chamber to utilize the time
for hearing and deciding other cases in the
interest of judicial work. Court rejected
the submission of the Review-Applicant.
(Para 3, 4)
B. Civil Law - Review - Constitution of
India,1950 - Articles 217 & 224 - Article
217, Appointment and conditions of the
office of a Judge of a High Court - Article
224, Appointment of Additional and Acting
Judges - Review on the ground that the
Special Appeal was heard by a Division
Bench consisting of two Judges, one of
whom was appointed under Article 217 of
the Constitution of India, whereas the
other Judge was appointed under Article
224 of the Constitution of India, thus the
formation of the Bench was against the
spirit of the Constitution of India - Held:
All Judges are duty-bound to perform the
judicial work allotted to them and exercise
their jurisdiction accordingly, irrespective
of the constitutional provision under
which they have been appointed. So far as
judicial powers and duties of Judges are
concerned, there is no difference between
Judges appointed under Article 217 of the
Constitution
of
India
and
Judges
appointed under Article 224. Court found
no substance in the second submission of
the Review-Applicant, and rejected the
same. (Para 10, 13, 17)
C. Civil Law - Precedents - Only the ratio
decidendi of a judgment is binding as a
precedent, not the order passed in a
case - Review - Review on the ground
that the judgment and order passed in
Writ Petition No. 4963 (S/S) of 2015,
wherein persons who had not worked
for a single day were treated as regular
employees and were paid post-retiral
dues and pension, was not considered by
the Division Bench while deciding the
Special Appeal - Held: Judgments passed
in
that
case
will
not
be
binding
precedents
unless
the
question
of
eligibility of the persons for being paid
salary for the period they had not
worked was decided in those judgments,
because it is a well-settled principle of
law of precedents that only the ratio
decidendi of a judgment is binding as a
precedent, not the order passed in a
case. (Para 28)
Dismissed. (E-5)
List of Cases cited:
State of Rajasthan Vs Prakash Chand, (1998)
1 SCC 1.
(Delivered by Hon'ble Subhash
Vidyarthi, J.)

1. This is an application seeking
review of the judgment and order passed
by a co-ordinate Bench of this court
dismissing Special Appeal No. 349 of
2022.

2. The first ground pressed by the
learned counsel for the review-applicant
is that the judgment was not pronounced
as per the procedure prescribed by
Chapter VII, Rule 1 of the Allahabad
High Court Rules, 1952. The aforesaid
Rule provides as follows: -

"1. Pronouncing of judgment:-

(1) After a case has been heard
judgment may be pronounced either at
once or on some future date 60 of which
notice shall be given to the Advocates of the
772 INDIAN LAW REPORTS ALLAHABAD SERIES
parties : Provided that notification in the
Cause List shall be deemed to be sufficient
notice.

(2) Where a case is heard by two
or more Judges and judgments is reserved,
their judgment or judgments, may be
pronounced by any one of them. If no such
Judge be present such judgment or
judgments may be pronounced by any other
Judge. 61

(3) Where a case is heard by a
Judge sitting alone and judgment is
reserved, his judgment may, in his absence,
be pronounced by any other Judge."

The purpose of the aforesaid Rule
is that the judgment delivered by the Court
should be known to the parties.

3. The aforesaid Rule provides that
after a case has been heard, the judgment
may be pronounced either at once, or on
some future date, of which notice shall be
given to the Advocates of the parties. It
further provides that notification in the
cause-list shall be deemed to be 'sufficient
notice'. After a case has been heard, the
judgment may be pronounced either at
once, or on some future date. This Rule is a
Rule of Procedure and it does not confer
any substantive right on any party. The
Rule does not provide any adverse
consequence of the entire judgment not
being
pronounced
in
open
Court
immediately. In our considered view, the
aforesaid
Procedural
Rule
is
merely
directory in nature.

4. The judgments are normally
pronounced in open court. In some cases,
where the dictation of judgment is
expected to consume a very long time,
the judgments are reserved. It is also a
common practice that at times the Courts
pronounce the jist of the judgment and
the outcome of the case in the open
Court, and the detailed judgments are
dictated in the Chamber so as to utilise
the time of working on the dias, which
would have been consumed in dictation
of the complete judgment, in the interest
of judicial work by hearing and deciding
some other cases. In the present case also,
jist of the judgment and the outcome of
the Appeal was pronounced in open court
and the detailed judgment was dictated
subsequently in the Chamber.

5. Therefore, we do not find force in
the submission of the learned Counsel for
the
Review-Applicant
that
as
the
complete judgment was not pronounced
in open Court, it becomes unsustainable
in
law. Thus,
we
reject
the
first
submission of the learned Counsel for the
Review-Applicant.

6. The next ground taken by the
learned
Counsel
for
the
ReviewApplicant is that the Special Appeal was
heard by a Division Bench, consisting of
two Judges, one of whom was appointed
under Article 217 of the Constitution of
India, whereas the other Judge was
appointed under Article 224 of the
Constitution of India and the formation of
the Bench was against the spirit of the
Constitution of India.

7. The Constitution of the Bench was
known to the learned Counsel for the
review-applicant at the time of making his
submissions in support of the Special
Appeal and still he preferred to advance his
submissions in support of the Special
Appeal and he took a chance of getting a
judgment which would be favourable to the
Appellant. This ground has been taken by
him for the first time in review application,
after the Special Appeal was dismissed. It
is settled law that a new ground cannot be
7 All. Mata Prasad Tiwari Vs. State of U.P. & Ors.
773
raised for the first time in review
application.

8. However, the learned Counsel for
the Review-Applicant has submitted that he
has taken this Ground in several other cases
and in none of the cases it has been
decided, so we proceed to consider the
merits of this submission.

9. The relevant provisions of Article
217 and 224 of the Constitution of India
provide as follows: -

"217.
Appointment
and
conditions of the office of a Judge of a
High Court.-(1) Every Judge of a High
Court shall be appointed by the President
by warrant under his hand and seal and
shall hold office, in the case of an
additional or acting Judge, as provided in
Article 224, and in any other case, until he
attains the age of sixty-two years:

Provided that-
* * *

224. Appointment of additional
and acting Judges.-(1) If by reason of any
temporary increase in the business of a
High Court or by reason of arrears of work
therein, it appears to the President that the
number of the Judges of that Court should
be for the time being increased, the
President may appoint duly qualified
persons to be additional Judges of the
Court for such period not exceeding two
years as he may specify.
(2) When any Judge of a High Court other
than the Chief Justice is by reason of
absence or for any other reason unable to
perform the duties of his office or is
appointed to act temporarily as Chief
Justice, the President may appoint a duly
qualified person to act as a Judge of that
Court until the permanent Judge has
resumed his duties.

(3) No person appointed as an
additional or acting Judge of a High Court
shall hold office after attaining the age of
sixty-two years."

10. A bare perusal of the aforesaid
Articles makes it manifest that Article 217
makes a mention of the Judges appointed
under Article 224 of the Constitution of
India and it differentiates them only in the
matter of their tenure of working by
providing that an additional or acting Judge
shall hold office as per the provision
contained in Article 224 and the other
Judges shall hold office until they attain the
age of 62 years.

11. Article 219 of the Constitution of
India contains the following provision for
Oath or affirmation by the Judges of High
Courts: -

"219. Oath or affirmation by
Judges of High Courts.-Every person
appointed to be a Judge of a High Court
shall, before he enters upon his office, make
and subscribe before the Governor of the
State, or some person appointed in that
behalf by him, an oath or affirmation
according to the form set out for the
purpose in the Third Schedule."

12. The form of oath to be made and
subscribed by all the Judges of the High
Courts, including the Chief Justices, is as
follows: -

"I, A.B., having been appointed
Chief Justice (or a Ju dge) of the High
Court at (or of) _ _ _ do swear in the name
of God / solemnly affirm that I will bear
true faith and allegiance to the Constitution
of India as by law established, that I will
uphold the sovereignty and integrity of
India, that I will duly and faithfully and to
774 INDIAN LAW REPORTS ALLAHABAD SERIES
the best of my ability, knowledge and
judgment perform the duties of my office
without fear or favour, affection or ill-will
and that I will uphold the Constitution and
the laws."

13. There is no separate provision for
making and subscribing oath by the Judges
appointed under Article 224 of the
Constitution of India and no separate Form
of Oath is prescribed for them. The Judges
appointed under Article 224 of the
Constitution of India are also under oath to
duly and faithfully and to the best of their
ability, knowledge and judgment, perform
the duties of their office without fear of
favour, affection or ill-will like a Judge
appointed under Article 217. The primary
duty of the office of a Judge is to render
justice to the litigants by deciding the cases
that are assigned to him and a Judge
appointed under Article 224 of the
Constitution of India is as much under Oath
to perform this duty, as a Judge appointed
under Article 217.

14. Rule 1 of Chapter V of the
Allahabad
High
Court
Rules,
1952
provides that "Judges shall sit alone or in
such Division Courts as may be constituted
from time to time and do such work as may
be allotted to them by order of the Chief
Justice
or
in
accordance
with
his
directions."

15. In State of Rajasthan v. Prakash
Chand, (1998) 1 SCC 1, the Hon'ble
Supreme Court emphasized that: -

"the administrative control of the
High Court vests in the Chief Justice of the
High Court alone and that it is his
prerogative to distribute business of the
High
Court
both
judicial
and
administrative. He alone, has the right and
power to decide how the Benches of the
High Court are to be constituted: which
Judge is to sit alone and which cases he
can and is required to hear as also as to
which Judges shall constitute a Division
Bench and what work those Benches shall
do."

16. The Hon'ble Chief Justice is the
master of the roster and he alone has the
authority to assign different cases or
category of cases to different Judges. All
the Judges are duty bound to perform the
judicial work allotted to them and to
exercise their jurisdiction accordingly,
irrespective of the Constitutional provision
under which they have been appointed.

17. So far as the judicial powers and
duties of the judges are concerned, there is
no difference between the Judges appointed
under Article 217 of the Constitution of
India and the Judges appointed under
Article 224. In case a Judge appointed
under Article 224 of the Constitution of
India does not decide any case for the
reason that he has been appointed under
that Article, he would be failing in the
performance of his Constitutional duties
and he will be dis-respecting his oath.

18. Therefore, we find no substance in
the second submission of the learned
Counsel for the Review-Applicant and we
reject the same.

19. Now we proceed to consider the
merits of the case in order to ascertain
whether the judgment under challenge
suffers from any error apparent on the face
of
the
record,
which
is
the
basic
requirement for reviewing a judgment. The
Review-Applicant was appointed as a
Collection Amin in the year 1986. Although
all persons appointed with him were
7 All. Mata Prasad Tiwari Vs. State of U.P. & Ors.
775
appointed on regular posts, they were
treated as Seasonal Collection Amins. One
of the selected candidates filed Writ
Petition No. 4031 (S/S) of 2001, which was
allowed by means of an order dated
19.08.2006 and a Writ of Mandamus was
issued for allowing the petitioner of that
Writ Petition to work as a Regular
Collection Amin.

20. The Review-Applicant filed Writ
Petition No. 738 (S/S) of 2012, which was
disposed-off by means of an order dated
07.02,2012, directing the respondents to
give him benefit of the order dated
19.08.2006 passed in Writ Petition No.
4031 (S/S) of 2001, to pay him salary for
the period 07.02.2002 to 13.11.2012 and to
pay him pension.

21. In furtherance of the aforesaid
order dated 07.02.2012, the Sub-Divisional
Magistrate, Gauriganj passed an order
dated 18.08.2012 permitting the ReviewApplicant to join his service as a Regular
Collection Amin. The Review-Applicant
has retired on 30.11.2012.

22. The Review Applicant filed a
Contempt Petition alleging non-compliance
of the order dated 07.02.2012 and the
Contempt Petition was dismissed after
recording that the order of the Writ Court
has been complied with. It appears that the
review Applicant did not challenge the
order dismissing the Contempt Petition
filed by him.

23. The Review Applicant thereafter
filed Writ Petition No. 6155 (S/S) of 2015 for
issuance of a Writ of Mandamus for fixation
of his salary as directed in the order dated
07.02.2012 passed in Writ Petition No. 738
(S/S) of 2012. The Hon'ble Single Judge
dismissed the Writ Petition holding that the
petitioner's claim had been rejected on the
ground that he had not worked as a Regular
Collection
Amin
from
27.08.2012
to
30.11.2012
and
from
07.02.2012
to
26.08.2012 and, therefore, he was not entitled
for payment of salary for the aforesaid period
on the principle of "No Work No Pay". The
petitioner's services were regularized vide
order dated 27.08.2012 and he had worked on
a regular basis for a period of merely 3
months and 5 days and he did not complete
the qualifying service of 10 years necessary
for making him entitled to receive pension.

24. The Special Appeal challenging the
aforesaid order had been dismissed as the
Division Bench was also of the view that the
petitioner was not entitled to receive salary
for the period he had not worked, applying
the principle of "No Work No Pay" and he
had not completed the qualifying service as a
Regular Collection Amin.

25. The learned counsel for the ReviewApplicant has submitted that in the judgment
and order dated 03.08.2017 passed in Writ
Petition No. 4963 (S/S) of 2015, Rajendra
Prasad Tiwari v. State of U.P. and in the
judgment and order dated 27.11.2018 passed
in Writ Petition No. 619 (S/S) of 2014, Md.
Usman Ansari v. State of U.P., the persons
who had not worked for a single day, were
extended benefit of judgment and order dated
19.08.2006 passed in Writ Petition No. 4031
(S/S) of 2001, whereby the petitioner's
services were treated as regular since
05.06.1986 and they were paid post-retiral
dues and pension, and this was not
considered by the Division Bench while
deciding the Special Appeal.

26. Although it is mentioned in
Ground-D taken in the memo of reviewapplication that the aforesaid judgments
were already on record, it has rightly not
776 INDIAN LAW REPORTS ALLAHABAD SERIES
been stated that the learned counsel for the
appellant had referred to those judgments
during his submissions.

27. Copies of Case-laws are not required
to be annexed with the Writ Petition or the
Memo of Appeal. In any case, while deciding
a case, the Court is required to consider the
submission made by the learned Counsel for
the parties and the case-laws placed by them
before the Court in support of their
submissions. The Court is not expected to go
through the entire record to find out whether
the petitioner or the appellant has brought on
record a copy of any case-law, although the
same has not been relied upon by the learned
counsel during his submissions.

28. Even if Rajendra Prasad Tiwari and
Md. Usman Ansari had been granted the
benefit of the judgment and order dated
19.08.2006 passed in Writ Petition No. 4031
(S/S) of 2001 although they had not worked
for a single day, the judgments passed in their
cases will not be binding precedents unless the
question of eligibility of the persons for being
paid the salary for the period they had not
worked was decided in those judgments,
because it is well settled law of precedents that
only the ratio of a judgment is binding as a
precedent, not the order which is passed in a
case.

29. For the aforesaid reasons, we are of
the considered view that the judgment and
order dated 17.01.2023 dismissing the Special
Appeal does not suffer from any error, much
less an error which is apparent on the face of
the record.

30. The review application lacks
merits
and
the
same
is
accordingly
dismissed. However, there will be no order
as to costs.
----------
(2023) 7 ILRA 776
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.07.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ-C No. 1562 of 2020

Ram Vilas ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anoop Kumar Mishra

Counsel for the Respondents:
C.S.C.
A. Criminal Law -Arms Act, 1959- Sections
17(3)
&
17(7)
-
Suspension
and
revocation of licences - If the conviction is
set aside on appeal or otherwise, the
suspension or revocation shall become
void - Cancellation of the arms license -
Mere pendency of the criminal case or the
apprehension that the petitioner may be
involved in future in any other criminal
case cannot be a ground for cancellation
of the arms license under the Arms Act,
1959, unless and until a clear-cut finding
is recorded by the Competent Authorities
that the possession of the firearm caused
a threat to public peace and is a danger to
the safety of human beings. (Para 10)
B. Arms Act, 1959, Ss 17(3), 17(7) -
Cancellation of the arms license - The
petitioner was involved in only one
criminal case and was finally acquitted by
order dated 23.07.2021. Perusal of the
order of acquittal does not show the use
of a firearm. As provided u/s 17(7), if the
conviction is set aside on appeal or
otherwise, the suspension or revocation
shall become void. Court held that after
acquittal, the very basis of the order of
cancellation vanished; the petitioner is