# Nafisul Hasan v. III-Addl. District Judge Deoria and others

- **Citation:** (2012) 2 ILRA 885
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-05
- **Case number:** Civil Misc. Writ Petition No. 23213 of 1999
- **Bench:** Sunil Hali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nafisul-hasan-v-iii-addl-district-judge-deoria-and-others-42196
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226readwith order 1 Rule 10 C.P.C.-Trail
Court allowed impleadment Applicationrevision also dismissed-Writ Court can
not act as Court of Appeal-unless order
impugned found illogical of suffering
from
procedural
irregularities-no
interference
called
far-Petition
Dismissed.

Held: Para 7

Considering the facts and circumstances
of the case, I find no illegality or
irregularity in the order impugned in this
writ petition. Moreover, impleadment
would necessarily not mean that their
claims are being accepted. Petitioner has
right to contest the matter before the
Trial Court. I find no force in this writ
petition. It is trite in law that in
considering the challenge to decisions,
Courts will not interfere as if they are
sitting in appeal over the decisions. In
essence, the test is to see whether there
is any infirmity in the decision making
process and not in the decision itself.
Thus, the Court cannot interfere with the
decisions like this unless it was illogical
or suffers from procedural impropriety or
was shocking to the conscience of the
Court.

## Text

2 All] Nafisul Hasan V. III-Addl. District Judge Deoria and others
885
authority concerned to consider the same if
any legal impediment is not available and
pass appropriate order as expeditiously as
possible preferably within a period of 15
days from the date of communication of this
order upon giving fullest opportunity of
hearing to the petitioners in accordance with
law.

2. No order is passed as to costs.

3. Now-a-days, we find that so many
cases with regard to delay of issuance of
pass port are coming forward before the
Court which are unnecessarily consuming
the valuable Court's time, as a result
whereof we observe herein that in case of
such default, any party can approach to the
permanent Lok Adalat, Lucknow for the
purpose of expeditious efficacious remedy.
In case any of the parties is compelled to
proceed before the permanent Lok Adalat in
such type of situation, he/she will also be
entitled to claim for compensation for
unnecessary delay.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2012

BEFORE
THE HON'BLE SUNIL HALI, J.

Civil Misc. Writ Petition No. 23213 of 1999

Nafisul Hasan

 ...Petitioner
Versus
III-Addl.
District
Judge
Deoria
And
Others

 ...Respondents

Counsel for the Petitioner:
Sri S.A. Lari

Counsel for the Respondents:
C.S.C.
Sri Vivekanand Yaday

Constitution
of
India,
Article
226readwith order 1 Rule 10 C.P.C.-Trail
Court allowed impleadment Applicationrevision also dismissed-Writ Court can
not act as Court of Appeal-unless order
impugned found illogical of suffering
from
procedural
irregularities-no
interference
called
far-Petition
Dismissed.

Held: Para 7

Considering the facts and circumstances
of the case, I find no illegality or
irregularity in the order impugned in this
writ petition. Moreover, impleadment
would necessarily not mean that their
claims are being accepted. Petitioner has
right to contest the matter before the
Trial Court. I find no force in this writ
petition. It is trite in law that in
considering the challenge to decisions,
Courts will not interfere as if they are
sitting in appeal over the decisions. In
essence, the test is to see whether there
is any infirmity in the decision making
process and not in the decision itself.
Thus, the Court cannot interfere with the
decisions like this unless it was illogical
or suffers from procedural impropriety or
was shocking to the conscience of the
Court.

(Delivered by Hon'ble Sunil Hali, J.)

1. The only ground taken in this writ
petition is that learned Trial Court has
wrongly allowed an application under
Order 1 Rule 10 CPC for impleadment of
respondents vide order dated 4.9.1993.
Revision against this order has also been
dismissed vide order dated 8.2.1999.

2. Heard learned counsel for the
parties and perused the material on
record.

3. The general rule in regard to
impleadment of parties is that the plaintiff
886 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
in a suit, being dominus litis, may choose
the persons against whom he wishes to
litigate and cannot be compelled to sue a
person against whom he does not seek
any relief. But this general rule is subject
to the provisions of Order I Rule 10(2) of
Code of Civil Procedure which provides
for impleadment of proper or necessary
parties.

4. The said sub-rule is extracted
below:

"Court may strike out or add
parties. (2) The Court may at any stage of
the proceedings, either upon or without
the application of either party, and on
such terms as may appear to the Court to
be just, order that the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the
name of any person who ought to have
been joined, whether as plaintiff or
defendant, or whose presence before the
Court may be necessary in order to enable
the Court effectually and completely to
adjudicate upon and settle all the
questions involved in the suit, be added."

5. The said provision makes it clear
that a court may, at any stage of the
proceedings either upon or even without
any application, and on such terms as may
appear to it to be just, direct that any of
the following persons may be added as a
party:

(a) any person who ought to have
been joined as plaintiff or defendant, but
not added; or(b) any person whose
presence before the court may be
necessary in order to enable the court to
effectively and completely adjudicate
upon and settle the question involved in
the suit.

6. The court is given the discretion
to add as a party, any person who is found
to be a necessary party or proper party.
However,
the
'discretion'
must
be
governed by rule, not by humour; it must
not be arbitrary, vague, and fanciful, 'but
legal and regular'. In other words, the
court has the discretion to either to allow
or reject an application of a person
claiming to be a proper party, depending
upon the facts and circumstances. The
only object of Order I Rule 10 CPC is to
discourage contests on technical pleas,
and to save honest and bonafide claimants
from being non suited. The power to
strike out or add parties can be exercised
by the Court at any stage of the
proceedings. Thus, the power of the Court
to add a party to a proceeding cannot
depend solely on the question whether he
has interest in the suit property. The
question is whether the right of a person
may be affected if he is not added as a
party. Such right, however, will include
necessarily an enforceable legal right.

7. Considering the facts and
circumstances of the case, I find no
illegality or irregularity in the order
impugned in this writ petition. Moreover,
impleadment would necessarily not mean
that their claims are being accepted.
Petitioner has right to contest the matter
before the Trial Court. I find no force in
this writ petition. It is trite in law that in
considering the challenge to decisions,
Courts will not interfere as if they are
sitting in appeal over the decisions. In
essence, the test is to see whether there is
any infirmity in the decision making
process and not in the decision itself.
Thus, the Court cannot interfere with the
decisions like this unless it was illogical
or suffers from procedural impropriety or
2 All] Shiv Shanker V. The Commissioner, Bareilly Division, Bareilly & Others
887
was shocking to the conscience of the
Court.

8. Accordingly the writ petition fails
and is hereby dismissed. The interim
order, if any, stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.05.212

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 23347 of 1995

Shiv Shanker

 ...Petitioner
Versus
The
Commissioner,
Bareilly
Division,
Bareilly & Others
 ...Respondents

Counsel for the Petitioner:
Sri Ravi Kant
Sri Mohd Arif
Sri Abhijeet Mukherjee

Counsel for the Respondents:
C.S.C.
Sri Prem Chandra
Sri P.N. Saxena

Constitution
of
India,
Article
226Dismissal
from
service-petitioner
working as a clerk in M.G. Palika Inter
College-placed
under
suspension
for
three allegations-three enquiry officers
conducted enquiry without indicating
date time and place-first allegation of
filing counter affidavit without narrativestand baseless in view of authority
letters of executive officer-other two
allegations of embezzlement without
supported documents, without giving
opportunity of cross examination-not
sustainable more than 19 years have
gone-considering
unnecessary
harassment and of charges without
supporting document-no useful purpose
to
remand
for
fresh
disciplinary
proceeding-dismissal order quashed with
all consequential benefits.

Held: Para 24 and 25

However, since I have already recorded
a finding that on both the charges there
was no evidence to substantiate the
charges and it was a case of no evidence,
therefore, I am not remitting back the
matter to the enquiry officer for holding
a fresh enquiry. Even otherwise the
charge sheets were issued in the year
1994 and more than 18 years have
already lapsed and the petitioner has
suffered enough and it would not be in
the interest of justice to remit the matter
back to the disciplinary authority to
enable him to sift and search for fresh
evidence to prove the guilt of the
petitioner.

Therefore, keeping strictly within the
parameters laid down for exercise of
power of judicial review in departmental
enquiries, from the above facts and
circumstances the irresistible conclusion
is that both the charges against the
petitioner are based on no evidence and
the finding recorded by the enquiry
officer are such which no man of
ordinary
prudence
or reason would
arrive at.
Case law discussed
(1947) 2 All E.R. 680; (1983) I.A.C. 768;
(1996) 7 SCC 509; (1999) 8 SCC 90; (1999) 2
SCC 10; (2001) 2 SCC 386; (2003) 3 SCC 583;
(2006) 13 SCC 1; (1983) I.A.C. 768

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. This writ petition has been filed by
the petitioner challenging the show cause
notice dated 25.11.1994, order dated
29.11.1994 dismissing him from service
and the appellate order dated 31.3.1995
rejecting his appeal.

2. The facts of the case, in brief, are
that while the petitioner was working on the