# Phool Chand Tewari v. A.D.J., Jaunpur and others

- **Citation:** (2008) 3 ILRA 715
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-15
- **Case number:** Civil Misc. Writ Petition No. 3374 of 1988
- **Bench:** Bharti Sapru
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chand-tewari-v-a-d-j-jaunpur-and-others-41152
- **Pages:** 6

## Headnote

Code of Civil Procedure Section 151Inherent Power of the Court-can be
exercised for doing substantial justicewhere no appeal or revision lie-it cannot
be invoked simultaneously-appeal under
statutory provision.

Held: Para 27

Taking into consideration the entire facts
and circumstances of the case, I am of
the opinion that the inherent powers as
conferred under section 151 C.P.C. may
only be invoked in certain situations but
not in a case where the party has a right
of filing an appeal or of revision under
the Code itself.
Case law discussed:
AIR 1973 Madras 135,.AIR 1987 Karnataka
264, AIR 1966 SC 1899, 2002 ACJ 1092 SC,
1999 ACJ 1462 SC, 2000 ACJ 51, 1998 RD

## Text

3 All] Phool Chand Tewari V. A.D.J., Jaunpur and others
715
institution. If there is requirement of
work, the respondents are required to
create a post of a Driver-cum-Mechanic.
Simultaneously,
the
service
of
the
petitioner cannot be dispensed with at this
stage and he is liable to be regularised and
be paid the regular salary on the post of
Driver-cum-Mechanic.

8. In view of the aforesaid, the Writ
Petition No. 29999 of 2000 is allowed.
The order dated 28th November, 1999,
passed by the respondent no. 2 is quashed.
The respondents are directed to pay the
salary to the petitioner since March, 1998
on the post of Driver-cum-Mechanic.

9. Consequently, the Writ Petition
No. 37901 of 2003 is also allowed. The
impugned order dated 4th March, 2002,
issued by the respondent no. 5 is quashed.

10. A writ of mandamus is issued to
the respondents to create a post of Drivercum-Mechanic within three months from
the date of the production of a certified
copy of this order and regularise the
services of the petitioner on that post. In
the mean while, the petitioner would be
paid the regular salary payable on the post
of Driver-cum-Mechanic. It would be
open to the State Government to initiate
an
enquiry
against
the
erring
officer/official and recover the amount
vis-a-vis
the
wrongful
appointment
initially made in favour of the petitioner
on the post of Driver-cum-Mechanic.

Petition allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2008

BEFORE
THE HON'BLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No. 3374 of 1988

Phool Chand Tewari

...Petitioner
Versus
A.D.J., Jaunpur & others Respondents

Counsel for the Petitioner:
Sri D.S.M. Tripathi

Counsel for the Respondents:
Sri H.S.N. Tripathi
S.C.

Code of Civil Procedure Section 151Inherent Power of the Court-can be
exercised for doing substantial justicewhere no appeal or revision lie-it cannot
be invoked simultaneously-appeal under
statutory provision.

Held: Para 27

Taking into consideration the entire facts
and circumstances of the case, I am of
the opinion that the inherent powers as
conferred under section 151 C.P.C. may
only be invoked in certain situations but
not in a case where the party has a right
of filing an appeal or of revision under
the Code itself.
Case law discussed:
AIR 1973 Madras 135,.AIR 1987 Karnataka
264, AIR 1966 SC 1899, 2002 ACJ 1092 SC,
1999 ACJ 1462 SC, 2000 ACJ 51, 1998 RD
607.

(Delivered by Hon'ble Bharati Sapru, J.)

1. Heard Sri. D.S.M. Tripathi for the
petitioner and Sri H.S.N. Tripathi for the
respondents.
716 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

2. This writ petition has been filed
by the petitioner seeking writ of certiorari
to quash the impugned order dated
5.1.1988 passed by the respondent no.1
and to quash the order 24.9.1985 passed
by the respondent no.2. A second prayer
has been made for the grant of writ of
mandamus directing the respondent no.2
to
dismiss
the
application
of
the
respondent no.3 and to restore the order
dated 14.3.1983 passed by the Munsif
City, Jaunpur in suit no.113 of 1978 by
which the suit itself was decided.

3. The brief facts of the case are that
the petitioner is defendant in the suit
no.113 of 1978 filed by one Kewala
Prasad-respondent
no.3
for
specific
performance of the contract on the basis
of an unregistered agreement dated
5.5.1976.

4. The defendant-petitioner filed
written statement denying the allegations
in the plaint and asserted that Ram
Lakhan, respondent no. 4 was the owner
of the disputed plot who had executed a
registered sale deed In his favour on
9.11.1978 and from that date onwards, the
petitioner had been in actual possession of
the land in dispute. The petitioner further
averred in the written statement that the
alleged agreement dated 5.5 1976 was a
forged document, which was never
executed by the respondent no.4 and the
respondent no. 3 Kewala Prasad had no
concerned with the land and trees in
dispute nor was he in possession of the
land in dispute at any given time.

5. The respondent no.4 also filed
written
statement
and
denied
the
allegations in the plaint and said that the
agreement dated 5.5.1976 was forged
document and he was the original owner
of the land. He had sold the land and had
executed a registered sale deed in favour
of the petitioner on 9.11.1978.

6. The respondent no.3, as said
earlier, filed suit no.113 of 1978. After
filing of the suit, the respondent no.3 filed
no evidence, even though he was granted
more than 30 times to file his evidence. It
is alleged in the writ petition that on
3.3.1983 the Court gave time to the
respondent no.3 to file evidence but on
that date also, he asked for deferment of
the date and a date was fixed on
14.3.1983.

7. On 14.3.1983 the respondent no.3
failed to give evidence but moved an
application for giving expert opinion. This
application was rejected on that date
itself. As the plaintiff failed to give
evidence on that date, the case was closed
against him and the trial court proceeded
under Order 17 Rule 3 C.P.C. and
dismissed the suit of the plaintiff holding
that there was no evidence whatsoever in
support of the plaintiff.

8. Once the suit was dismissed, the
plaintiff filed an appeal. At the time when
the appeal was filed, there was deficiency
in the court fee but the plaintiff appellant
did not make good deficiency of the court
fee and the appeal was dismissed on
1.10.1983.

9. After the appeal was dismissed,
neither the plaintiff-respondent filed any
restoration application in the said appeal
nor had he filed any second appeal or any
writ petition against the order dated
1.10.1983. In fact nothing has been filed
by the plaintiff-respondents against the
order dated 1.10.1983.
3 All] Phool Chand Tewari V. A.D.J., Jaunpur and others
717

10. However during the pendency of
the appeal, the plaintiff-respondents took
recourse of filing of an application under
section 151 C.P.C. On 1.7.1983 with the
prayer that the order dated 14.3.1983 be
recalled. The application dated 1.7.1983 is
on record of the writ petition as Annexure
3. The application for recall does not
mention that the plaintiff respondents had
also moved an appeal for setting aside the
impugned order dated 14.3.1983. The
application for recall is completely salient
on this point.

11. The petitioner appeared and
opposed the application under section 151
C.P.C. which had been filed along with
the application under section 5 of the
Limitation Act. The application for
condonation of the delay under section 5
of the Limitation Act was allowed on
24.9.1985, which is one of the orders
impugned and thereafter the application
under section 151 C.P.C. was allowed on
25.3.1986. Against the order dated
25.3.1986 and the order dated 24.9.1985,
the petitioner filed a revision. The
revision of petitioner was dismissed on
5.1.1988. As a result of which the suit of
the plaintiff was restored to its original
number.

12. Learned counsel for the
petitioner argued that the application
under section 151 C.P.C. against the order
dated
14.3.1983
was
not
legally
maintainable and was wrongly allowed by
the court below.

13. It is the contention of the
petitioner that the order dated 14.3.1983
dismissing the suit was passed on merits
and in the presence of the respondent no.
3 while proceeding under Order 17 Rule 3
C.P.C. and as such only an appeal would
be maintainable against such an order or
at the most review application may be
filed.

14. Learned counsel for the
petitioner has argued that by the order
dated 14.3.1983 the suit had been
concluded and it had become final and
therefore the application under Section
151 C.P.C. was completely misconceived
and not maintainable as the application
under Section 151 C.P.C. is only moved
or restored to wherein matters is pending
and not concluded.

15. Learned counsel for the
petitioner has argued that the inherent
jurisdiction of this Court is only invoked
in the circumstances where the matter is
not concluded and not in circumstances
where the order is passed against which
the litigant has a statutory or other proper
remedy available.

16. Learned counsel for the
petitioner has further argued that in fact
the
plaintiff
respondent
had
taken
recourse to the filing of an appeal against
the order dated 14.3.1983 but did not
pursue the appeal vigilantly and allowed
the appeal also to be dismissed on
1.10.1983 and thereafter took no steps
against the order dated 1.10.1983.

17. Learned counsel for the
petitioner has further argued that in any
case the suit of the plaintiff had been
dismissed for want of evidence, therefore
no purpose would be fulfilled in getting
the suit decided without evidence and for
this reason, the impugned orders passed
by the court below were bad.

18. In order substantiate the
argument as made by him, the learned
718 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
counsel for the petitioner has cited several
decisions of various Courts. He has relied
on a decision of Madras High Court
rendered in the case of H.J. Dorairaj
versus Vishwanatha Rupa and Co.
reported in AIR 1973 Madras 135. In this
case the Madras High Court has held that
the application under section 151 C.P.C.
was not maintainable when the appellant's
remedy was to file an appeal against the
final order.

19. The second decision cited by the
learned counsel for the petitioner was
M/s. Maruthi Enterprises versus Smt.
Muniyanjamma and others reported in
AIR 1987 Karnataka 264 in which
Karnataka High Court came to the
conclusion that inherent jurisdiction of the
Court can only be exercised subject to the
rules that if the Code did not provide any
specific provision which would meet the
necessities of the case in question, there
being a specific remedy under the Code
by way of an appeal or review, it was not
open for the litigant to invoke the inherent
jurisdiction under section 151 C.P.C. The
Karnataka High Court came to the
conclusion while relying on a decision of
the Hon'ble Apex Court in the case of
Ram Chand and Sons Sugar MilIs Pvt.
Ltd.
Versus
Kanhayalal
Bhargava,
reported in AIR 1966 SC 1899 wherein
Hon'ble Apex Court observed that the
inherent power of the Court "is in addition
to and complimentary to the powers
expressly conferred under the Civil
Procedure Code. But that power will not
be exercised if its exercise is inconsistent
with, or comes into conflict with any of
the powers expressly or by necessary
implication
conferred
by
the
other
provisions of the Code."

20. Learned counsel for the
petitioner further placed reliance on a
decision of Hon'ble Apex Court rendered
in the case of State of W.B. and others
versus Karan Singh Binayak and others,
reported in 2002 ACJ 1092 SC wherein
the Hon'ble Apex Court held that the
inherent powers of the court could not be
exercised to reopen the settled matters and
cannot be resorted to when there is
specific provisions in the Act to meet the
situation.

21. Learned Counsel for the
petitioner also relied on another decision
of Hon'ble Supreme Court in the Budhia
Swain and others versus Gopinath Deb
and others, reported in 1999 ACJ 1462
SC, in which also the Hon'ble Apex Court
laid down the parameters when the
inherent powers of the Court can be
invoked.

22. Learned counsel for the
petitioner also placed reliance on a
decision of the Allahabad High Court in
the case of Lalji and others versus VII
Additional District Judge reported in
2000 ACJ 51. In this case, the Allahabad
High Court discussed at length the
circumstances when the provision of
section 151 C.P.C. can be invoked and
came to the conclusion that it cannot be
invoked when the matter is concluded and
there is remedy available to challenge the
same as provided in the Code itself.
Allahabad High Court further held that
where the remedies are available under
the Act, inherent powers cannot be
invoked simply because such remedies
have become time barred and has further
held that the party who is not diligent and
who had wasted his chances in not
availing
the
remedies
available,
is
3 All] Phool Chand Tewari V. A.D.J., Jaunpur and others
719
precluded from invoking inherent powers
of the Court.

23. Here I may add that in view of
the fact that the plaintiff had availed the
remedy by filing an appeal against the
order dated 14.3.1983 and the appeal was
dismissed on 1.10.1983 it cannot be said
that the appellant was not aware of his
statutory rights. The application under
section 151 C.P.C. filed on 1.7.1983 was
in addition to his invoking his statutory
rights and was filed as an after thought.
The plaintiff was simultaneously taking
recourse to two remedies one by filing an
appeal and another by filing application
under section 151 C.P.C. Once the party
had invoked proper remedy under the
Code. his application under section 151
C.P.C. was clearly misconceived and
deserved to be rejected being not
maintainable.

24. In reply to all these arguments,
learned counsel for the respondents has
argued that once the Court has exercised
discretion for the hearing of the matter on
merits, the superior court should not
disturb such finding and has placed
reliance on a decision of the Hon'ble
Apex
Court
in
the
case
of
N.
Balakrishnan versus M. Krishnamurthy,
reported in 1998 RD 607.

25. Having heard learned counsel
for the parties at length and having
examined the material on record, I am of
the opinion that the arguments as
advanced by the learned counsel for the
petitioner have substance and are liable to
be accepted by this Court for the reasons
that the plaintiff firstly allowed the suit
itself to be dismissed without giving
evidence. Thereafter the plaintiff filed a
revision, which too was dismissed being
deficiency of court fee and he did not
peruse it. If the litigant had been serious
at all. he would have sought to get the
appeal restored, which was dismissed on
1.10.1983 or at least would have filed a
second appeal against the same.

26. The litigant on the other hand
was playing hide and seek with the Court.
He
was
pursuing
two
remedies
simultaneously - on one hand he had filed
an statutory appeal which it was not
pursued by him diligently and on other
hand, he had filed an application under
section 151 C.P.C. which was clearly not
a remedy in the matter, especially when
the suit itself had been concluded finally
and was decreed also.

27. Taking into consideration the
entire facts and circumstances of the case,
I am of the opinion that the inherent
powers as conferred under section 151
C.P.C. may only be invoked in certain
situations but not in a case where the
party has a right of filing an appeal or of
revision under the Code itself.

28. In the present case, it seems that
the litigant was well-informed about the
remedies available to him and therefore
had taken recourse to two remedies
simultaneously.
In
my
opinion
the
application under section 151 C.P.C. was
wrongly allowed by the court below as
well and the revisional order also suffers
from error of law, which are hereby set
aside.

29. The writ petition is allowed as
above. The impugned orders dated
5.1.1988, 25.3.1986 and 24.9.1985 are
quashed.
-------------
720 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 666 of 2008

Ramesh Gaur

...Appellant
Versus
Mahanideshak,
Karagar
Prashashan
Evam Sudhar Sevaen, U.P. and others

 Respondents

Counsel for the Appellant:
Sri. B.L. Yadav
Sri. K.K. Kanojiya

Counsel for the Respondents:
Sri. M.C. Chaturvedi
S.C.

Constitution of India-Article 226, Article
341-appointment of petitioner as Bandi
Rakshak cancellation-on ground of forge
caste certificate-reliance based upon
State Government Notification dated
31.03.1986-held-any
executive
action
contrary
to
the
predetermined
listviolative of Article 341-apart from the
fact-fraud
vitiates
every
thingtermination
order-proper-warrants
no
interference

Held: Para 12

Therefore
any
executive
action
or
legislative enactment of the State which
interferes,
disturbs,
re-arranges,
regroups or re-classifies the various castes
found in the Presidential List will be
violative of scheme of the Constitution
and will be violative of Article 341 of the
Constitution.
Case law discussed:
(1994) 6 SCC 241, 2004 AI R SCW 6419,
Special Appeal No. 89 of 2005 decided on 4th
February-2005.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Sri B.L. Yadav, learned counsel
for
appellant
and
learned
Standing
Counsel for the respondents.

2. This special appeal has been
preferred against the judgment and order
passed by the learned Single Judge dated
29th April, 2008 dismissing the writ
petition filed by the appellant. The writ
petition was directed against the order
passed by the Senior Superintendent,
Divisional/District Jail, Gorakhpur dated
9th April, 2008 terminating/cancelling the
appointment of the appellant as Bandi
Rakshak.

3. Brief facts necessary for deciding
the special appeal are that in response to
the advertisement dated 14th May, 2003,
for filling up the backlog vacancies
belonging
to
the
Scheduled
Caste
category, petitioner-appellant made an
application claiming himself to be a
member of Scheduled Caste category. On
the basis of caste certificate submitted by
the appellant, he was selected as Bandi
Rakshak on 31st July, 2003. The caste
certificates, which were submitted by the
appellant and other selected candidates
were sent for verification to the respective
districts and Tehsils from where such
caste certificates were obtained. Report
was submitted by the Tehsildar Sadar,
Gorakhpur on 7th January, 2008 to the
effect that the caste certificate submitted
by the petitioner was never issued by the
Tehsil-authority. Thereafter a show-cause
notice dated 15th January, 2006 was
issued to the petitioner calling for his
explanation. The appellant submitted his
reply stating that the caste certificate was
issued by the Tehsildar concerned on 4th
July, 1989, therefore, re-verification be