# Prem SIngh v. XIIth Adj,Agra & others

- **Citation:** (2012) 1 ILRA 100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-03
- **Case number:** Civil Misc. Writ Petition No. 37206 of 2000
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-singh-v-xiith-adj-agra-others-42134
- **Pages:** 8

## Headnote

Code of Civil Procedure-Order 41 Rule19-Application to re-admit and condone
delay in filing such application-rejected
on ground after transfer of appeal the
counsel put appearance-can not be
allowed to say absence knowledge-heldwhen counsel made endorsement that
his client not responding -court below
not justified in drawing inference of
knowledge-word-sufficient cause-to be
applied meaningful manner to sub serves
the end of justice and not to close the
door of justice-direction issued to decide
1 All] Prem SIngh V. XIIth Adj,Agra & others
101
the appeal itself on its merit within time
bound period.

Held: Para 20

On the cost of repetition, it may be
observed that once the court has issued
notice to the appellant, then without
there being any prima facie satisfaction
with regard to service of notice, the
court should not have proceeded on the
assumption that the counsel is appearing
when the counsel himself endorsed that
his client is not responding. Coupled with
the fact that the counsel who was
appearing in suit has subsequently been
changed while filing appeal in the High
Court, taking that into consideration, I
find
that
there
was
sufficient
explanation to condone the delay in
filing
the
restoration
application.
Otherwise also, if the court below was of
the opinion that there was no sufficient
explanation to condone the delay and to
restore the appeal to its original number,
in that eventuality, the court below
ought to have examined the matter with
a
view
to
see
the
purpose
of
establishment of courts, which certainly
are established to impart the substantial
justice to parties. While considering the
matter of condonation of delay, the merit
of the case was also to be taken into
consideration.
Case law discussed:
A.I.R. 1987 SC 1353; JT 2000 (5) 389; 1978
ARC 496; First Appeal From Order No. 2023 of
2010 (Ram Garib and another Vs Ram Prasad
Mishra), decided on 11.02.2011; 2011 (8) ADJ
511

## Text

100 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
aforesaid time schedule, the petitioner
would be entitled to 9% interest from the
date she is found entitled to such payment,
till actual payment. It is made clear that if
the payment is made within the stipulated
time, the respondent-Bank shall not be
liable to pay any interest. No order as to
costs."

17. In the present case also the facts
are similar to the above case and even on
a better footing. If the argument of the
Bank is also accepted that no application
was moved by the petitioner as alleged in
the writ petition on 16.11.1995 or in
December,
1995,
moving
of
an
application
along
with
form
on
27.11.1997 is not denied. In the case of
Smt. Sushila Rai (supra) the application
was moved on 16.06.1998 after lapse of
almost three years while in the present
case it was moved on 27.11.1997 and the
only ground taken by the respondents also
is of delay in moving the aforesaid
application and also of not complying the
conditions given therein. The petitioner
has also stated that she was not supplied
with the copy of the said scheme inspite
of the clear instructions of the Bank. It is
also not the case of the Bank that the
petitioner was supplied with the said
scheme or the said scheme was sent at her
permanent address. The Bank has also not
taken any other ground to reject the claim
of the petitioner. Therefore, the case of
the petitioner is fully covered by the
decision in the case of Smt. Sushila Rai
(supra).

18. In view of the above discussions,
the writ petition succeeds and is allowed.
The order dated 12.05.2002 passed by
respondent no.4 (Annexure-7 to the writ
petition) is quashed. It is directed that the
respondent shall give benefit of family
pension to the petitioner under the
Allahabad Bank (Employees) Pension
Regulation, 1995 on the basis the
application filed by her on 27.11.1997.

19. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 37206 of 2000

Prem Singh

 ...Petitioner
Versus
XIIth Adj,Agra & others ...Respondents

Counsel for the Petitioner:
Sri Ranjit Saxena
Sri Anupam Kulshreshtha,
Sri H.N.Singh
Sri R.S.Kushwaha
Sri R.S.Kulshreshtha
Sri S.K.Kulshreshth
Smt. Anita Tripathi
Sri Sharat Chandra Upadhyay

Counsel for the Respondents:
Sri Pradeep kumar
Sri R. Kumar
C.S.C.

Code of Civil Procedure-Order 41 Rule19-Application to re-admit and condone
delay in filing such application-rejected
on ground after transfer of appeal the
counsel put appearance-can not be
allowed to say absence knowledge-heldwhen counsel made endorsement that
his client not responding -court below
not justified in drawing inference of
knowledge-word-sufficient cause-to be
applied meaningful manner to sub serves
the end of justice and not to close the
door of justice-direction issued to decide
1 All] Prem SIngh V. XIIth Adj,Agra & others
101
the appeal itself on its merit within time
bound period.

Held: Para 20

On the cost of repetition, it may be
observed that once the court has issued
notice to the appellant, then without
there being any prima facie satisfaction
with regard to service of notice, the
court should not have proceeded on the
assumption that the counsel is appearing
when the counsel himself endorsed that
his client is not responding. Coupled with
the fact that the counsel who was
appearing in suit has subsequently been
changed while filing appeal in the High
Court, taking that into consideration, I
find
that
there
was
sufficient
explanation to condone the delay in
filing
the
restoration
application.
Otherwise also, if the court below was of
the opinion that there was no sufficient
explanation to condone the delay and to
restore the appeal to its original number,
in that eventuality, the court below
ought to have examined the matter with
a
view
to
see
the
purpose
of
establishment of courts, which certainly
are established to impart the substantial
justice to parties. While considering the
matter of condonation of delay, the merit
of the case was also to be taken into
consideration.
Case law discussed:
A.I.R. 1987 SC 1353; JT 2000 (5) 389; 1978
ARC 496; First Appeal From Order No. 2023 of
2010 (Ram Garib and another Vs Ram Prasad
Mishra), decided on 11.02.2011; 2011 (8) ADJ
511

(Delivered by Hon'ble Ran Vijai Singh,J. )

1. This writ petition has been filed
for issuing writ of certiorari quashing the
order dated 20.07.2000, passed by XIIth
Additional District Judge, Agra in Misc.
Case No. 82 of 1990 (Prem Singh Vs.
Roshan Singh), by which the petitioner's
application, filed under Section 5 of
Limitation Act, for condoning the delay,
in filing application under Order XLI,
Rule 19 of the Code of Civil Procedure
(hereinafter referred to as CPC), has been
rejected.

2. The facts giving rise to this case
are that it appears that an agreement was
entered in between the petitioner and the
respondent No. 3 for execution of sale
deed of 1/3rd share in disputed plot No.
208, measuring about 1 bigha 4 biswa,
Khasra No. 209, area 6 bigha 1 biswa 10
biswansi, total 7 bigha 7 biswa 10
biswansi
for
consideration
of
Rs.35,000.00, out of which Rs.10,000.00
was alleged to have been paid as an
earnest money. However, the sale deed
was not executed, in the time, stipulated
in
the
agreement,
therefore,
the
defendant-respondent No. 3 had filed
Original Suit No. 328 of 1988 for
Specific Performance of Contract to
execute the sale deed. The suit was
decreed on 20.07.1990.

3. Aggrieved by the aforesaid
judgment, the defendant-petitioner filed
appeal before this Court. Thereafter,
because
of
change
of
pecuniary
jurisdiction, the aforesaid appeal was
transferred before the court below. After
transfer on 30.08.1996, a notice was
issued by the court below to the
appellant,
fixing
31.10.1996.
On
31.10.1996, it appears, another date was
fixed. The appellant did not appear and
the case was adjourned for 15.02.1998.
Thereafter, it was again adjourned for
29.03.1998. On 29.03.1998, the counsel,
who was appearing in the suit, was
informed by the court concerned to
appear in the court. Pursuant thereto, he
appeared before the court below and
made an endorsement on the order-sheet
102 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
that appellant is not responding, hence
notice be issued to the appellant.

4. The court below, taking the
service of notice on the appellant
sufficient
through
counsel,
on
08.07.1997 dismissed the appeal for want
of prosecution.

5. It appears that an application was
filed by the appellant thereafter, under
Order XLI, Rule 19 CPC, to re-admit the
appeal along with an application for
condonation of delay. In the application
it was stated that, at no point of time, the
petitioner/appellant was informed about
the transfer of the appeal before the court
below and the date fixed in the matter,
and he came to know about the same
only on 09.04.1999 when he had taken a
copy of khatauni from the Lekhpal. It is
also stated that since 09.04.1999 to
14.04.1999 the appellant was busy in
filing objection in execution case of the
suit property, therefore could not file the
aforesaid application.

6. The lower appellate court, taking
note of the fact that the service of notice
was sufficient as the counsel had already
appeared, rejected the application for
condonation of delay. The learned
counsel for the petitioner while assailing
this order has contended that once the
notice was issued to the appellant, a
specific report ought to have been there
that the notice issued by the court was
served on the appellant. He has also
drawn attention of the Court towards the
provisions contained in Order III, Rule 4
(3) (b) CPC. In the submission of the
learned counsel for the petitioner, the
service of notice upon the counsel who
was appearing before the court below in
the suit proceeding was not sufficient, as
the appeal was filed before the High
Court through different counsel, meaning
thereby,
the
earlier
Vakalatnama
executed in favour of the counsel
appearing in the suit proceeding has been
terminated. He has also submitted that
there may not be sufficient explanation
for condoning the delay in filing the
application under Order XLI, Rule 19,
but on that count, the application should
not have been rejected.

7. Refuting the submissions of the
learned counsel for the petitioner, Shri
Pradeep
Kumar,
learned
counsel
appearing for respondent has submitted
that the provisions contained under Order
III, Rule 4 (c) are mandatory in nature,
and
unless
the
vakalatnama
i.e.
authorisation to appear in the case is
specifically withdrawn or some order is
passed by the Court to that effect, that
will continue and mere engagement of
another counsel will not mean that the
earlier counsel has been disengaged. He
has also submitted that the petitioner has
contested the execution matter and filed
objection there and the objection was
rejected, and ultimately, the sale deed
was
executed
in
favour
of
the
respondent-plaintiff
on
07.11.1998
through
court,
and
the
plaintiffrespondent has been in possession
throughout thereafter. In the submission
of
the
learned
counsel
for
the
respondents, the writ petition lacks merit
and deserves to be dismissed.

8. I have heard Shri H.N. Singh,
Ms. Anita Tripathi, Shri Sharat Chandra
Upadhyay, learned counsel for the
petitioner and Shri Pradeep Kumar,
learned counsel appearing for contesting
respondents and perused the record.
1 All] Prem SIngh V. XIIth Adj,Agra & others
103

9. From the perusal of the
impugned order it transpires that the
court below has proceeded on the
assumption that the appellant was having
knowledge of the pendency of the appeal
and participated in the proceeding and
deliberately not made the submission on
merit. While coming to this conclusion,
learned Judge has recorded that notice
was issued to the appellant in the appeal
as well as in the execution proceeding,
but he has not chosen to appear in the
appeal. The Court found that the service
of notice was sufficient as the counsel
who had appeared in the suit proceeding
was informed and he appeared before the
court.

10. Shri H.N. Singh, learned
counsel appearing for the petitioner has
invited attention of the Court towards
sub-rule (3) (b) of Rule 4 of Order III
C.P.C. which reads as under:-

"O. III, R. 4 (3) (b) as authorising
service on the pleader of any notice or
document issued by any Court other than
the Court for which the pleader was
engaged, except where such service was
expressly agreed to by the client in the
document referred to in sub-rule (1)."

11. In the submission of the learned
counsel for the petitioner, from perusal
of the aforesaid rule, it transpires that the
knowledge of the suit proceeding will
only be material when the proceeding
has commenced in that very court. In his
submission, after the decree in the suit,
the petitioner/defendant has filed an
appeal before High Court and there a
different counsel was engaged. The
appeal was admitted and interim order
was also granted, therefore, by any
stretch of imagination, it cannot be said
that the earlier counsel, who was
prosecuting the suit proceeding, shall
continue even after transfer of the appeal
from High Court to the court below. In
his submission, after engagement of
another counsel in the High Court, the
authorisation/power given in the suit
proceeding by the defendant-petitioner
would cease to operate and it cannot
revive
automatically
unless
fresh
authorisation is given by the appellant.

12. Shri Pradeep Kumar, learned
counsel appearing for respondent has
submitted that as soon as the appeal has
been transferred to the court below, the
appeal pending before the court below
will be treated as continuation of the suit
proceeding in view of sub-section (2) (c)
of Rule 4 of Order III, and therefore, the
counsel who has put in appearance in the
suit proceeding shall continue to be the
counsel on behalf of the defendant.

13. The argument advanced by the
learned counsel for the petitioner appears
to be misconceived for the reason that if
the sub-rule (2) and sub-rule (3) (b) of
Rule 4, Order III C.P.C. is read together,
it would transpire that appointment of the
pleader shall be deemed to be in force
until determined with leave of the Court
by writing signed by the client or
pleader, as case may be, and filed in
Court, or until the client or the pleader
dies or until all the proceedings in
dispute are ended so far as regards the
client. Sub-rule (2) (c) of Rule 4 provides
that the authorisation will continue in
appeal from any decree or order in the
suit. The sub-rule (3) (b) provides
nothing in sub-rule (2) shall be construed
as authorising service on the pleader of
any notice or document issued by any
Court other than the Court for which
104 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
pleader was engaged, except where such
service was specially agreed to by the
client in the document referred to in subrule (1).

14. Here, in this case, although the
appeal was filed before the High Court,
and later on transferred before the court
below, but at no point of time, the client
has withdrawn the authorisation or the
Court has determined such authorisation,
and here the proceeding after transfer
was going on before the court below and
there was a valid engagement of the
counsel in the suit. Therefore, in view of
the legal proposition that the appeal is
the continuation of the suit proceeding,
the authorisation of the counsel shall be
treated to be valid one. The only question
remains as to whether on the specific
statement of the counsel that he has no
instructions and client is not responding
in the matter, was it proper on the part of
the court below to proceed with the
matter in absence of the counsel,
particularly, under the circumstances
when the file was taken away and matter
was brought before the High Court.

15. From perusal of the impugned
order, it transpires that the notice was
also issued to the appellant, but it has not
been recorded by the learned judge
deciding the application that that notice
was ever served upon the appellant, and
this could also not be pointed out by the
learned
counsel
appearing
for
the
respondent that the notice issued by the
court below was served personally on the
defendant-petitioner.

16. On the contrary, a document
has been shown, which has been brought
on
record
through
supplementary
affidavit with report of the process
server, which reads as under:-

"Jheku th

fn- 4-12-96 dks xzke clbZ vkxjk tkdj izse
flag dks ryk'k fd;k ugh feys ekStwnk O;fDr;ksa us
tqckuh crk;k 'kknh esa x;s gq;s gSA vkus dk dksbZ
irk ugh pyk vr% ,d fdrk uksfVl muds edku
ls yxk fn;kA xokgh fdlh us ugh nhA fjiksVZ o
gYQ lgh gSA

g0 xksfoUn flag
vk-rk-
4-12-96^^

17. From the perusal of report of
the process server, it transpires that the
notice was not served personally and the
same was pasted on the door of the
petitioner/appellant
as
he
was
not
available there. It also transpires that
while this pasting was done, nobody has
witnessed it. In such circumstances, I am
of the view that in absence of any
concrete
proof,
for
recording
the
satisfaction of the court, with regard to
the
service
of
notice
on
the
petitioner/appellant, the court below
should not to have proceeded with the
matter, and the only course open was to
issue a fresh notice to the appellant and
not to proceed on the assumption that,
the counsel had knowledge, and in spite
of the positive assertion of the learned
counsel (who appeared before the court)
that the appellant was not responding.

18. So far as the knowledge of the
petitioner with regard to the filing of the
application under Order XLI, Rule 19 is
concerned, it was filed on 24th April,
1999 with the positive assertion that the
defendant had acquired knowledge of the
aforesaid order only on 09.04.1999, and
after coming to know he had also filed
1 All] Prem SIngh V. XIIth Adj,Agra & others
105
objection on 26.04.1999 in the execution
case. The court below has taken the view
that the application filed by the appellant
was highly barred by time and there was
no proper explanation for not filing the
application well within time. The court
had also proceeded with the assumption
that in spite of the knowledge of the
proceeding, the restoration application
was not filed.

19. From the perusal of the record,
it transpires that there is no material on
the record to establish this fact that the
petitioner has got knowledge about the
order of the dismissal of the appeal prior
to 09.04.1999. The court below has
proceeded only on the assumption that
since the petitioner has filed objection in
the execution case and his counsel has
also appeared in execution as well as in
appeal proceedings, therefore, it was
very well in the knowledge of the
petitioner and he ought to have filed the
recall application promptly without any
delay.

20. On the cost of repetition, it may
be observed that once the court has
issued notice to the appellant, then
without there being any prima facie
satisfaction with regard to service of
notice, the court should not have
proceeded on the assumption that the
counsel is appearing when the counsel
himself endorsed that his client is not
responding. Coupled with the fact that
the counsel who was appearing in suit
has subsequently been changed while
filing appeal in the High Court, taking
that into consideration, I find that there
was sufficient explanation to condone the
delay in filing the restoration application.
Otherwise also, if the court below was of
the opinion that there was no sufficient
explanation to condone the delay and to
restore the appeal to its original number,
in that eventuality, the court below ought
to have examined the matter with a view
to see the purpose of establishment of
courts, which certainly are established to
impart the substantial justice to parties.
While
considering
the
matter
of
condonation of delay, the merit of the
case
was
also
to
be
taken
into
consideration.

21. In Collector, Land Acquisition,
Anantnag & Anr. Vs. Mst. Katiji &
Ors., A.I.R. 1987 SC 1353, the Apex
Court, while dealing with the expression
'sufficient cause', for the purposes of
condonation of delay, has observed as
under:-

The expression "sufficient cause"
employed by the legislature is adequately
elastic to enable the Courts to apply the
law in a meaningful manner which
subserves the ends of justice, that being
the life-purpose for the existence of the
institution of Courts. It must be grasped
that judiciary is respected not on account
of its power to legalise injustice on
technical grounds, but because it is
capable for removing injustice and is
expected to do so.

22. Further, in the case of State of
Bihar & Ors. Vs. Kameshwar Prasad
Singh & Anr., JT 2000 (5) 389, the Apex
Court, while dealing with the word
'sufficient cause', has observed as under:-

"Para
12.........
The
expression
'sufficient cause' should, therefore, be
considered with pragmatism in justiceoriented process approach rather than the
technical detention of sufficient case for
explaining every day's delay. The factors
106 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
which are peculiar to and characteristic
of the functioning of pragmatic approach
in justice-oriented process. The court
should decide the matters on merits
unless the case is hopelessly without
merit.
No
separate
standards
to
determine the cause laid by the State visa-vis private litigant could be laid to
prove strict standards of sufficient
cause."

23. Further in the case of Ramji
Dass & Ors. Vs. Mohan Singh, 1978
ARC 496, the Apex Court has held, "we
are inclined to the view that, as far as
possible, Courts' discretion should be
exercised in favour of hearing and not to
shut out hearing."

24. A Division Bench of this Court
in First Appeal From Order No. 2023 of
2010 (Ram Garib and another Vs Ram
Prasad Mishra), decided on 11.02.2011,
while dealing with the appeal filed
against
an
order
of
rejection
of
application under Order IX, Rule 13
C.P.C. has also taken the same view and
set aside the ex parte decree.

25.

While
dealing
with
an
application filed under Section 5 of the
Indian Limitation Act, this Court in the
case of Hindalco Industries Limited Vs.
Brijesh Kumar Agarwal & Anr., 2011
(8) ADJ 511, has observed that the court
should decide the cases on merit instead
of scuttling the process of justice on
technicalities. Taking note of that, I find
that the order passed by the court below
is contrary to the settled provisions of
law, and there was sufficient cause to
condone the delay.

26. In view of that, the impugned
order
dated
20.07.2000
is
hereby
quashed. The writ petition succeeds and
is allowed. I would also like to allow the
restoration application as well and
restore the appeal to its original number.
Of course, the inconvenience caused to
the
plaintiff-petitioner
is
to
be
compensated, and for that, I impose a
cost of Rs.5000.00 on the petitioner
which is to be paid to the defendantrespondent through his counsel, or
directly. The lower appellate court is
directed to decide the appeal on merits, if
possible, within a period of one year
from the date of receipt of certified copy
of the order of this Court along with
receipt of payment of cost to the
plaintiff/opposite party, without granting
any unnecessary adjournments to the
learned counsel for the parties.

27. Shri Pradeep Kumar, learned
counsel appearing for respondent has
submitted that since the sale deed has
already been executed and the applicant
is in possession, therefore, the allowing
of this appeal may affect his possession.
I am of the view that nothing would turn
by allowing of the restoration, unless the
appeal is allowed and decree, passed by
the court below, is set aside, everything,
which has been done by the executing
court, that shall continue.

28. It may be clarified that I have
not addressed myself on the merits of the
case and the learned court below shall
proceed with the appeal independently
without being influenced by any of the
observations made by me in this
judgment.
---------
1 All] Munish Kumar Sharma and another V. State of U.P. and others
107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED; ALLAHABAD 19.01.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc Writ Petition No. 45303 of 2006

Munish Kumar Sharma and another

 ...Petitioner
Versus
State Of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Prabhakar Sinha
Sri Swarn Kumar Srivastava
Sri Kamal Kumar Singh
Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-salaryBifurcation
of
Pay
Scale
by
G.O.
16.03.1998-Quashed-became
finalsubsequent G.O. Dated 03.06.2000-again
bifurication
in
garb
of
5th
Pay
Commission-automatically
became
lifeless-held-petitioner entitled for every
consequential benefits of salary from the
date of his substantive appointmentwithin specified period.

Held: Para 16 and 17

It is also notable that it is not the stand
of the state government that against the
order dated 22.11.2001 quashing the
order dated 16.3.1998 bifurcating the
cadre, the State government has taken
legal recourse by way of filing special
appeal
or
special
leave
to
appeal
meaning thereby the said order has
become final.

Taking note of that, the writ petition
succeeds and is allowed and writ of
mandamus
is
issued
directing
the
respondent no. 1 to ensure the payment
of salary to the petitioner in the scale of
950-1500 with further revision of this
scale in view of the subsequent report of
Pay Commission. The entire exercise has
to be done within a period of four
months from the date of receipt of
certified copy of the order of this Court

(Delivered by Hon'ble Ran Vijai Singh,J. )

1. Initially this writ petition was
filed with by the two petitioners out of
which petitioner no. 1 has passed away on
23.1.2010. The abatement application has
been allowed and the writ petition stands
abated so far as it relates to the petitioner
no.1.

2. This writ petition has been filed
with the following prayers:-

(a) Issue a writ order or direction in
the nature of mandamus commanding the
respondent no. 3 to grant revised pay
scale to the petitioner Rs. 3050-75-395080-4590.

(b) Issue a writ order or direction in
the nature of mandamus commanding the
respondents to pay arrears of revised pay
scale.

(c) Issue any other writ, order or
direction as this Hon'ble Court may deem
fit and proper under the circumstances of
the case.

(d) Award the cost of the petition to
the petitioner.

3. The petitioner was working on
daily wage basis with the respondents
since 1980 and on 1st November, 1984 he
was made member of the work charge
establishment and thereafter his services
were
regularised
on
the
post
of
Amin/Surveyor vide order dated 20th