# Pt. Chet Ram Sharma v. Ist A.D.J., Meerut and others

- **Citation:** (2004) 2 ILRA 573
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-09
- **Case number:** Civil Misc. Writ Petition No. 17062 of 1985
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pt-chet-ram-sharma-v-ist-a-d-j-meerut-and-others-40255
- **Pages:** 6

## Headnote

(A) U.P. Act No. 13 of 1972-S.10,22 and
34-Review-Power of Appellant Court-in
absence of Specific Provision-appellate
court can not exercise the power of
Review.

Held: Para 15

Thus, from a perusal of Sections 10, 22,
and 34 of the Act, read with Rule 22 of
the Rules, coupled with the decisions
cited aforesaid it is clear that no specific
provision has been provided under the
Act to review a judgment given by the
appellate court.

(B) Code Civil Procedure- 1908-S.151-
Judgment dictated on the points-neither
raised in memo of appeal, nor arguedwhether can be interfered by the said
court, by exercising inherent Powerheld- 'yes'-for the omission of court-the
litigant should not be put to suffer.

Held: Para 27

Thus, in my view, in the present facts
and circumstances of the case the
application for recall of the judgment
passed by the appellate court could be
made under Section 151, C.P.C. and the
same was maintainable. In exceptional
circumstances and to advance the cause
of justice, the appellate court had the
inherent power under Section 151, C.P.C.
to recall its judgment.

## Text

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2 All] Pt. Chet Ram Sharma V. Ist A.D.J., Meerut and others
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petitioner had retained the amount for a
considerable period of time and utilized
the money for his own gain benefit. The
fact that the petitioner deposited the
amount only after he was suspended does
not absolve the petitioner of his initial
guilt of misappropriating the amount.
Further, no explanation had been given by
the petitioner as to why he could not
deposit the money earlier. In the absence
of any explanation, it is clear that the
intention
of the
petitioner was
to
misappropriate the amount. Thus such a
person who was posted as a Tax
Collector, which is a post of trust, could
not retained in service.

15. In my view the punishment
awarded commensurated with the gravity
of the charges and which was squarely
been proved against the petitioner and I
see no grounds to interfere with the
punishment awarded by the Disciplinary
Authority.

16. For the aforesaid reasons, I find
no merit in the writ petition and is
accordingly dismissed. However, in the
circumstances of the case, there shall be
no order as to cost.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 17062 of 1985

Pt. Chet Ram Sharma

...Petitioner
Versus
Ist Addl. District Judge, Meerut and
others

 ...Respondents

Counsel for the Petitioner:
Sri N.C. Rajvanshi
Sri M.C. Rajvanshi
Sri M.C. Mishra
Sri M.K. Rajvanshi

Counsel for the Opposite Parties:
Sri Ravi Kant
Sri Pankaj Mittal
Sri Shubham Agarwal
S.C.

(A) U.P. Act No. 13 of 1972-S.10,22 and
34-Review-Power of Appellant Court-in
absence of Specific Provision-appellate
court can not exercise the power of
Review.

Held: Para 15

Thus, from a perusal of Sections 10, 22,
and 34 of the Act, read with Rule 22 of
the Rules, coupled with the decisions
cited aforesaid it is clear that no specific
provision has been provided under the
Act to review a judgment given by the
appellate court.

(B) Code Civil Procedure- 1908-S.151-
Judgment dictated on the points-neither
raised in memo of appeal, nor arguedwhether can be interfered by the said
court, by exercising inherent Powerheld- 'yes'-for the omission of court-the
litigant should not be put to suffer.

Held: Para 27

Thus, in my view, in the present facts
and circumstances of the case the
application for recall of the judgment
passed by the appellate court could be
made under Section 151, C.P.C. and the
same was maintainable. In exceptional
circumstances and to advance the cause
of justice, the appellate court had the
inherent power under Section 151, C.P.C.
to recall its judgment.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner is a tenant and has
filed the writ petition challenging the
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order dated 11.10.1985 passed by the
appellate court recalling its judgment and
restoring the appeal to its original
number.

The facts are that respondent no.3 is
the landlord and had filed an application
under Section 21 (1)(a) of U.P. Act No.13
of 1972 (hereinafter referred to as 'the
Act') for the release of the shop in
question on the ground of personal need.
The petitioner contested the release
application. The prescribed authority by
its judgment dated 26.9.1978 allowed the
application and released the premises in
question.

2.

Aggrieved,
the
petitioner
preferred an appeal under Section 22 of
the Act. The appellate court by judgment
and order dated 26.11.1984 allowed the
appeal and set aside the judgment of the
prescribed authority and remanded the
matter back to the prescribed authority to
re-decide the matter after hearing the
parties.

3. It transpired that the landlord filed
an application under Section 151, C.P.C.
for the review of the order dated
26.11.1984. The appellate court vide
order dated 11.10.1985 recalled its order
and directed the appeal to be heard afresh
on merits.

4. The tenant has challenged this
order dated 11.10.1985 contending that
the application for review was not
maintainable against a judgment passed
under Section 22 of the Act.

5. Heard Sri N.C. Rajvanshi, the
learned Senior Counsel assisted by Sri
Manik Chandra Mishra and Sri Pankaj
Mittal, the learned counsel for the
landlord/opposite party, assisted by Sri
Shubham Agarwal, Advocate.

6. The learned counsel for the
petitioner submitted that the appellate
court under the Act had no power to
review its earlier judgment and hence the
impugned order of the appellate court
reviewing its own judgment was wholly
illegal and without jurisdiction. On the
other hand, the learned counsel for the
landlord/opposite party submitted that the
appellate court had inherent powers to
review its earlier judgment under clause
(b) of Rule 22 of the Rules for the ends of
justice to prevent the abuse of the process
of the authority concerned.

7. In order to appreciate the
submissions made by the rival parties, it is
essential to place a few provisions of the
Act and the Rules framed therein.
Section 22 of the Act reads as under:-

"Appeal.- Any person aggrieved by
an order under Section 21 or Section 24
may within thirty days from the date of
the order prefer an appeal against it to the
District Judge, and in other respects, the
provisions of Section 10 shall mutatis
mutandis apply in relation to such
appeal."

Section 10 of the Act reads as under:-

"10. Appeal against order under
Sections (8, 9 and 9-A)- (1) Any person
aggrieved by an order of the District
Magistrate under Section 8 or Section 9 or
Section 9-A may, within thirty days from
the date of the order, prefer an appeal
against it to the District Judge, and the
District Judge may either dispose of it
himself or assign it for disposal to any
Additional District Judge under his
administrative control, and may recall it
from any such officer, or transfer it to any
other such officer.
(2) The appellate authority may
confirm, vary or rescind the order, or
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2 All] Pt. Chet Ram Sharma V. Ist A.D.J., Meerut and others
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remand the case to the District Magistrate
for rehearing, and may also take any
additional evidence, and pending its
decision, stay the operation of the order
under appeal on such terms, if any, as it
thinks fit.
(3) No further appeal or revision
shall lie against any order passed by the
appellate authority under this section, and
its order shall be final."

8. From the aforesaid it is clear that
the appellate court has power to confirm,
vary or rescind the order or remand the
matter back to the prescribed authority for
rehearing.

9. Section 34 of the Act deals with
the powers of various authorities and the
procedure to be followed by them.
Section 34 of the Act is quoted
hereunder:-

"34. Powers of various authorities
and procedure to be followed by them:-
(1) The District Magistrate, the prescribed
authority or any appellate or revising
authority shall for the purposes of holding
any inquiry or hearing any appeal or
revision under this Act have the same
powers as are vested in the Civil Court
under the Code of Civil Procedure, 1908
(Act No. V of 1908), when trying a suit,
in respect of the following matters,
namely,-
(a)
summoning
and
enforcing
the
attendance
of
any
person
and
examining him on oath;
(b) receiving evidence on affidavits;
(c) inspecting a building or its locality, or
issuing
commissions
for
the
examination
of
witnesses
or
documents or local investigation;
(d)

requiring
the
discovery
and
production of documents;
(e) awarding, subject to any rules made
in that behalf, costs or special costs to
any party or requiring security for
costs from any party;
(f) recording a lawful agreement,
compromise
or
satisfaction
and
making an order in accordance
therewith;
(g) any other matter which may be
prescribed."

Sub section (8) of Section 34 is quoted
hereunder:
"(8) For the purposes of any
proceedings under this Act and for
purposes connected therewith the said
authorities shall have such other powers
and
shall
follow
such
procedure,
principles of proof, rules of limitation and
guiding principles as may be prescribed.

10. Section 34 (g) of the Act
provides that apart from the powers given
to the appellate court under clause (a) to
(f) of sub-section (1) of Section 34, the
State Government may provide other
powers as may be prescribed. Section 41
of the Act enables the State Government
to make Rules to carry out the purposes of
the Act. In exercise of the powers under
Section 41 of the Act, the Uttar Pradesh
Urban Buildings (Regulation of Letting
Rent and Eviction)Rules 1972 were
framed (hereinafter referred to as the
"Rules").

Rule 22 of the Rules states as under:-

"22. Powers under the Code of
Civil Procedure, 1908 (Section 34
(1)(g)].- The District Magistrate, the
Prescribed Authority or the Appellate
Authority shall, for the purposes of
holding any inquiry or hearing any appeal
or revision under the Act, shall have the
same powers as are vested in the Civil
Court under the Code of Civil Procedure,
1908 when trying a suit, in respect of the
following matters, namely-
(a)
the power to dismiss an application,
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appeal or revision for default and to
restore it for sufficient cause;
(b)
the power to proceed ex parte, and
to set aside, for sufficient cause, an
order passed ex parte;
(c)
the power to award costs and
special costs to any successful party
against the unsuccessful party;
(d)
the power to allow amendment of
an application, memorandum of
appeal or revision;
(e)
the power to consolidate two or
more cases of eviction by the same
landlord against different tenants;
(f)
the power referred to in sections
151 and 152 of the Code of Civil
Procedure, 1908 to make any order
for ends of justice or to prevent the
abuse of process of the authority
concerned".

11. In Shiv Behari Sharma vs.
Additional District Judge, Kanpur,
1977 AWC 679, it was held that there was
no remedy for a review under U.P.Act
No.13 of 1972.

In Abdul Hameed vs. District
Judge, Kanpur, 1979 ARC 408, it was
held that appellate authority had no power
to review its earlier order.

12. In Kishori Lal alias Kashmiri
Lal and others vs. Rent Control &
Eviction Officer, Rampur and another,
1984(2) ARC 623, it was held that a
review application was not maintainable
to review an order passed under Section
9-A of the Act.

13. In Kailash Singh Rajput vs.
Ram Prakash, AIR 1979 Alld. 110, it was
held that the Court had no power to
review its order in exercise of its inherent
power and that the power of review could
only
be
conferred
by
law
either
specifically or by necessary implication.

14. The learned counsel for the
petitioner also invited my attention to a
decision of the Supreme Court in Lily
Thomas vs. Union of India and others,
AIR 2000 SC 1650, in which it was held
that the power of review can only be
exercised for correction of a mistake and
not to substitute a view and that the power
of review could only be exercised within
the limits of the statute dealing with the
exercise of such power. The review could
not be treated as an appeal in question.

15. Thus, from a perusal of Sections
10, 22, and 34 of the Act, read with Rule
22 of the Rules, coupled with the
decisions cited aforesaid it is clear that no
specific provision has been provided
under the Act to review a judgment given
by the appellate court.

16. Even though there is no specific
provision for review, but could the
appellate court exercise such powers by
necessary implication under Section 151
C.P.C.? Section 34 (8) of the Act read
with Rule 22(f) of the Rules gives powers
to the appellate court to exercise the
powers of Section 151 C.P.C. to pass such
orders for the ends of justice or to prevent
the abuse of the process of the authority
concerned. In fact, the powers of Section
151 C.P.C. is clearly and expressly
engrafted in Rule 22(f) of the Rules.

17. Section 151 C.P.C. does not
confer any powers but only indicates that
there is a power to make such orders as
may be necessary for the ends of justice
and to prevent an abuse of the process of
the Court. If the circumstances require the
court to act "ex debito justitios" and to do
that real and substantial justice, the Court
has the inherent power under Section 151
C.P.C. to make such orders.

18. In Sri Sheo Kishan Das vs. The
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2 All] Pt. Chet Ram Sharma V. Ist A.D.J., Meerut and others
577
Prescribed
Authority,
Pilibhit
and
others, 1980 ARC 369, a Division Bench
of this Court held that although no
specific
powers
are
conferred
but
restitution can be granted under Section
151, C.P.C. in exercise of powers under
Rule 22(g) and Section 34 of the Act and
refusal to grant restitution would amount
to non-exercise of jurisdiction vested in
such authorities by law.

In S.G. Estates and Properties Ltd.
Vs. Tehri Steels Ltd., 1997(1) ARC 614,
it was held-

"...Section 151 is the jurisdiction
inherent in a Court which can be
exercised where there is no remedy
available or where though such remedy is
available it is just and expedient in the
interest of justice that such jurisdiction is
to be exercised..."

In Sheo Nath Gupta vs. Pramod
Kumar Misra and others, 2000(1)ARC
270, it was held-

"...if the orders do not serve the ends
of justice and do not prevent the abuse of
the process of the Court then the powers
should not be exercised under Section 151
of the Code..."

19. From the aforesaid, it is clear
that when there is no remedy available or
where though such remedy is available, it
is just and expedient in the interest of
justice that such power is exercised under
Section 151 of the C.P.C. The Courts
have power in the absence of any express
or implied prohibition to pass an order as
may be necessary for the ends of justice
or to prevent the abuse of the process of
the Court.

20.

Applying
the
aforesaid
principles, it has to be seen as to whether
the landlord's application for recall comes
within the parameters of the power
conferred under Section 151, C.P.C.

21. Admittedly, an application under
Section 151, C.P.C. was filed for recall of
the judgment of the appellate court. The
ground for recall was that the appellate
court had allowed the appeal on such
grounds which were neither raised nor
argued by any party and, therefore, the
landlord had no opportunity to rebut those
grounds. The ground for recall of the
judgment has not been disputed by the
petitioner. The appellate court after
hearing the review application passed an
order dated 31.5.1985, which is quoted
hereunder:-

22. "The main grievance of the
applicant in this Review petition is that a
point not argued in appeal was considered
by me at the time of the writing of the
judgment and the petitioner claims that he
has been prejudiced by this reason."

"In this premises and context I place
this on record that the points whether the
disputed
accommodation
was
an
independent structure or was a part of a
larger building or structure was never
argued in Court and it occurred to me for
the first time at the time of writing of
judgment when I came across the site plan
of the accommodation in question and
that changed entire thinking about the
appeal. Since I came to hold an opinion
that remand was the only answer. I did
not consider it necessary to rehear the
matter as no decision on merits, in my
opinion was being passed.

"...I, however be the last person to
let a litigant suffer for any fault or error
committed by me even unknowingly. I
can only say that Judges like the rest of
them are all human and the concept of
error is an integral concomitant of us all
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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mortals."

23. Based on this order, the
appellate court subsequently passed the
impugned order and recalled its judgment
and posted the appeal for rehearing.

24. In my view, the order passed by
the appellate court recalling its earlier
judgment has been validly passed in the
exercise of its powers conferred under
Section 151, C.P.C. to meet the ends of
justice and to prevent the abuse of the
process of the Court. The appellate court
clearly held that the judgment was passed
on certain grounds which occurred to the
judge which dictating the judgment and
which points were neither raised nor
argued by the parties and therefore, the
litigant should not suffer for any fault or
error committed by the appellate court.
On this basis, the appellate court recalled
its judgment.

25. The inherent powers have not
been conferred on the Court. It is a power
inherent in the Court by virtue of its duty
to do justice between the parties. One of
the first and main duties of the Court is to
ensure that the act of the Court does not
cause injustice to any of the suitors.
Accordingly, if injustice has been done by
the Court, the aggrieved party can invoke
the provisions of Section 151, C.P.C.

26. The maxim of law expressed in
the Latin phrase "actus curaie nemini
gravabit", namely that the error of the
Court will cause no harm to a litigant,
fully applies in the instant case.

27. Thus, in my view, in the present
facts and circumstances of the case the
application for recall of the judgment
passed by the appellate court could be
made under Section 151, C.P.C. and the
same was maintainable. In exceptional
circumstances and to advance the cause of
justice, the appellate court had the
inherent power under Section 151, C.P.C.
to recall its judgment.

28. In the result, the writ petition is
devoid of any merit and is dismissed with
costs, which is assessed at Rs.10,000/-.
The petitioner is directed to deposit the
cost before the appellate court within four
weeks from today, which the landlord can
withdraw. The appellate court is further
directed to decide the appeal within three
months from the date a certified copy of
this order is produced before him.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.8.2004

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

First Appeal From Order No.199 of 1992

National Insurance Co. Ltd. ...Appellant
Versus
Satya Prakash and others ...Respondents

Counsel for the Appellant:
Sri A.K. Sinha

Counsel for the Respondents:
Sri A.K. Shukla
Sri V.K. Sharma
Sri D.V. Singh
Sri Sudhir Jaiswal

Motor Vehicles Act 1988-Section 173Principle of Joint tort feasers -explained:
Collusion between two trucks-carrying
more than 6 passengers-driver of both
the trucks found driving the vehicle
rashly and negligently-held both are
liable to pay the compensation.

Held: Para 12 & 13

Therefore the liability of appellant under