# Om Prakash Chaubey v. D.I.O.S. Varanasi & Ors

- **Citation:** (2015) 3 ILRA 1447
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-02
- **Case number:** Special Appeal Defective No. 784 of 2015
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-chaubey-v-d-i-o-s-varanasi-ors-43342
- **Pages:** 4

## Headnote

Constitution of India-Art.-226-Dismissal of
Writ Petition-as infructuous-on statement
made by Counsel-recall by another Counselrejection saying not maintainable-held-not
proper-order impugned being terminationcan not be infectious-application by another
counsel-maintainable.
Held: Para-7
However, even if that be so, we are of
the view that the ends of justice would
require that the order of dismissal of the
writ petition as infructuous by efflux of
time should be recalled. The appellant
has challenged an order of termination.
The cause of the appellant against the
order of termination continues to survive
and has not been rendered infructuous
by lapse of time.
Case Law discussed:
(2015) 7 SCC 373

## Text

3 All.
Om Prakash Chaubey Vs. D.I.O.S. Varanasi & Ors.
1447
court exercises its jurisdiction, only in
furtherance of justice. The interests of
justice and public interest coalesce, and
therefore, they are very often one and the
same. A petition or an affidavit containing a
misleading and/or an inaccurate statement,
only to achieve an ulterior purpose, amounts
to an abuse of process of the court."
27. For the aforesaid facts and
discussions, we do not find any good
ground to interfere with the order of the
learned Single Judge dismissing the writ
petition of the petitioner-appellants and
imposing cost on both of them and the
same is hereby affirmed.
28. The special appeal, accordingly,
stands dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Special Appeal Defective No. 784 of 2015
Om Prakash Chaubey
..Appellant
Versus
D.I.O.S. Varanasi & Ors.
...Respondents
Counsel for the Appellants:
Shankar Bhagwan Singh, Raj Nath Pandey
Counsel for the Respondents:
C.S.C.
Constitution of India-Art.-226-Dismissal of
Writ Petition-as infructuous-on statement
made by Counsel-recall by another Counselrejection saying not maintainable-held-not
proper-order impugned being terminationcan not be infectious-application by another
counsel-maintainable.
Held: Para-7
However, even if that be so, we are of
the view that the ends of justice would
require that the order of dismissal of the
writ petition as infructuous by efflux of
time should be recalled. The appellant
has challenged an order of termination.
The cause of the appellant against the
order of termination continues to survive
and has not been rendered infructuous
by lapse of time.
Case Law discussed:
(2015) 7 SCC 373
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. The appellant filed a writ petition
under Article 226 of the Constitution
seeking to challenge an order dated 18 May
1993 passed by the Manager of the Harihar
Mahadev Inter
College, Deochandpur,
Varanasi by which his services were
terminated. The appellant also sought a
mandamus restraining interference in the
discharge of his duty as Assistant Teacher
in the L.T. Grade. The petition came up for
hearing before the learned Single Judge on
1 November 2010 and the following order
was passed:
"Learned counsel for the petitioner
states that this writ petition has become
infructuous by efflux of time.
It is accordingly dismissed."
2. The appellant moved a recall
application stating that he had no
knowledge of the order dated 1 November
2010 since despite enquiry his previous
counsel had not furnished a satisfactory
response and that it was only ten days
prior thereto when he was informed from
the office of the District Inspector of
Schools, Varanasi that the petition had
been dismissed on 1 November 2010. It
1448
 INDIAN LAW REPORTS ALLAHABAD SERIES
may be also noted that the appellant stated
that he was regularly working in the
institution and had never furnished
instructions to his earlier counsel to make
the statement that the petition had been
rendered infructuous by lapse of time.
The relevant averments in that regard
were as follows:
"6. That aforesaid writ petition was not
infructuous by efflux of time as stated by
previous counsel of the petitioner but
petitioner is regularly working in the
aforesaid institution as Assistant Teacher in
L.T. Grade in Sri Harihar Mahadeo Inter
College,
Deochandpur,
Varanasi
and
petitioner was full hope for his regularization
but on account of statement of previous
counsel matter of regularization has been
stopped and petitioner suffering from great
loss.
7. That no any consent was taken by
the previous counsel to the petitioner
before giving the statement before this
Hon'ble Court that writ petition has been
became infructuous by efflux of time but
on account of imagination aforesaid
statement was given by the previous
counsel which is not true."
3. The learned Single Judge
dismissed the recall application on 16
October 2015 with the following order:
"1. This is an application seeking
recall of order dated 1.11.2010.
2. The aforesaid order was passed on
the statement made by counsel for petitioner.
Application for recall has been filed by a
different counsel, who was not present on
that date and has not made the statement.
This application by a different counsel is not
maintainable inasmuch the Court recollect
that counsel, who appeared on behalf of
petitioner on that day initially tried to argue
the matter on merits, but finding some
difficulty, he made statement for dismissal of
writ petition as infructuous. I, therefore, find
no reason to recall the said order.
3.
The
Restoration
Application,
along with delay condonation application,
is hereby rejected."
4. The only ground on which the recall
application has been dismissed is that it was
filed by a counsel who was not present on the
date of the earlier order of dismissal. In the
view of the learned Single Judge, an
application by a different counsel was not
maintainable. The Court observed that it
could recollect that the counsel who
appeared on behalf of the appellant on that
date had initially tried to argue the matter on
merits but finding some difficulty, he had
made a statement to the effect that the
petition be dismissed as infructuous.
5. In our view, the real issue to be
decided is whether such a statement
which was made by the learned counsel
appearing on behalf of the appellant to the
effect that the petition had been rendered
infructuous by efflux of time would bind
the appellant so as to prevent him from
applying for recall of the order. The
learned Single Judge has held against the
appellant on the ground that the recall
application was filed by some other
Advocate. The fact that the recall
application was filed by some other
Advocate would assume relevance if the
appellant sought to dispute whether such a
statement was actually made before the
learned Single Judge. For the purpose of
the special appeal, we shall proceed on
the basis that such a statement was made
before the learned Single Judge on 1
November 2010 to the effect that the
petition had been rendered infructuous by
efflux of time. The issue is not as to
3 All.
Om Prakash Chaubey Vs. D.I.O.S. Varanasi & Ors.
1449
whether the statement was made but
whether even if made, the appellant
would be precluded from applying for
recall on the ground that the statement did
not reflect the correct state of affairs.
6. We may note, as we have observed
above, that the challenge in the present case
was to an order terminating the services of
the appellant which had been passed on 18
May 1993. The writ petition was pending in
Court thereafter for nearly 17 years. There is
no reason to presuppose that a petition
challenging an order of termination of this
nature would be rendered infructuous by
efflux of time. The issue as to whether the
petition is or is not rendered infructuous by
lapse of time, is a matter which can certainly
be agitated before the Court if the litigant on
whose behalf a statement was made by the
counsel seeks to urge that the statement was
made mistakenly and without authority of the
client. The appellant was entitled to urge that
the issue in regard to the legality of the order
of termination was a live issue and that he
was continuing in the service of the
institution.
7. In our view, the learned Single
Judge ought not to have dismissed the
recall application merely on the ground
that it was made by counsel other than the
person who has appeared on behalf of the
appellant when the matter was heard on 1
November 2010. The fact that the
application was made by a new counsel
may at the highest dis-entitle the appellant
from questioning whether the recital in
the order of the learned Single Judge
dated 1 November 2010 is a correct
statement of what had actually transpired
in the Court. Hence, for the purpose of
this appeal, we have proceeded on the
basis that the learned Single Judge on 1
November 2010 correctly recorded the
statement which was made before the
Court by the counsel. However, even if
that be so, we are of the view that the
ends of justice would require that the
order of dismissal of the writ petition as
infructuous by efflux of time should be
recalled. The appellant has challenged an
order of termination. The cause of the
appellant against the order of termination
continues to survive and has not been
rendered infructuous by lapse of time.
8. At this stage, it would be
necessary to advert to a recent judgment
of the Supreme Court in Himalayan Coop.
Group Housing Society vs. Balwan
Singh1 where the following principles
have been laid down.
"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. 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. Thus, according to generally
accepted
notions
of
professional
responsibility, lawyers should follow the
client's instructions rather than substitute
their judgment for that of the client. We may
add that in some cases, lawyers can make
decisions without consulting the client.
While in others, the decision is reserved for
1450
 INDIAN LAW REPORTS ALLAHABAD SERIES
the client. It is often said that the lawyer can
make decisions as to tactics without
consulting the client, while the client has a
right to make decisions that can affect his
rights."
9. These principles would clearly
stand attracted to the fact of this case. For
these reasons, we allow the special appeal
and accordingly set aside both the orders
dated 1 November 2010 and 16 October
2015. Writ-A No. 18410 of 1993 is
restored to the file of the learned Single
Judge for disposal afresh. However, we
clarify that we have not expressed any
opinion on the merits of the rights and
contentions of the parties in the writ
petition which will have to be adjudicated
upon by the learned Single Judge.
10.

The
special
appeal
is,
accordingly, disposed of. There shall be
no order as to costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2015
BEFORE
THE HON'BLE PRAMOD KUMAR
SRIVASTAVA, J.
Second Appeal No. 998 of 2015
Smt. Hirakali & Anr.
 ...Appellants
Versus
Ankur Agarwal & Anr.
...Respondents
Counsel for the Appellants:
Sri Keshav Dhar Tripathi
Counsel for the Respondents:
---
C.P.C. Section-100-Second Appeal-Suit for
specific performance-decreed by Courts
below-ground
regarding
escalation
of
value of property subject matter of suitnot taken before Lower Appellate Courtcan not be available in Second appeal-no
substantial
question
of
law
found
involved-suit rightly decreed by Court
below.
Held: Para-9
On examination of the reasoning recorded
by the trial court, which are affirmed by the
learned first appellate court in first appeal, I
am of the view that the judgments of the
trial court as well as the first appellate court
are well reasoned and based upon proper
appreciation of the entire evidence on
record. No perversity or infirmity is found in
the concurrent findings of fact recorded by
the trial cout that has been affirmed by the
first appellate court to warrant interference
in this appeal. No question of law, much
less a substantial question of law was
involved in the case before this Court. None
of the contentions of the learned counsel
for
the
appellant-
plaintiffs
can
be
sustained.
Case Law discussed:
Laws (SC)-2008-1-13; ((2008) 12 SCC 67)
(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)
1. Original suit no. 934/2006 (Ankur
Agrawal v. Smt. Hirakali & others) was
filed
for
specific
performance
of
registered
contract
dated
25.06.2009
executed between the plaintiff Ankur
Agrawal and Om Prakash (predecessor in
interest of defendants) for sell of disputed
property in favour of the plaintiffs.
According to plaint case, plaintiffs and
Om Prakash had executed said registered
sale-deed in which it was agreed that
owner of disputed property Om Prakash
will sell the said property for a
consideration of Rs. 1,60,000/- in favour
of plaintiffs, and at the time of execution
of said agreement to sell Om Prakash had
received advance of Rs. 70,000/- .The