# Raj Kumar Chauturvedi v. U.P. Awas Evam Vikas Parishad & Ors

- **Citation:** (2025) 3 ILRA 84
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-05
- **Case number:** Matters Under Article 227 No. 8117 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-chauturvedi-v-u-p-awas-evam-vikas-parishad-ors-53246
- **Pages:** 6

## Headnote

Civil Law-The Constitution of India, 1950Artcle 227 -The Code of Civil Procedure,
1908-Section 107, Order 6 Rule 17---
Once the amendment application has been
rejected and the same had not been
challenged, petitioner cannot be given liberty
to bring very same facts again after some
time by filing new application. In fact such
act of petitioner is barred by the Principle of
res judicata---Court has rightly rejected the
amendment application by the impugned
order---The appellate Court has ample power
to take additional evidence or to require
such evidence to be taken, the Appellate
Court shall have the same powers and shall
perform as nearly as may be the same duties
as are conferred and imposed by this Code
on
Courts
of
original
jurisdiction---no
illegality in the impugned order. (Para 11,
15 & 16)

Petition dismissed. (E-15)

List of Cases cited:

## Text

84 INDIAN LAW REPORTS ALLAHABAD SERIES

"11) In the present case, the
learned Magistrate has not conducted any
inquiry so as to satisfy himself that the
allegations in the complaint constitute an
offence and when considered alongwith the
statements recorded and the result of such
inquiry. There is ground for proceedings
against the petitioners under Section 204
CrPC. There is nothing on record to show that
the learned Magistrate has applied his mind to
arrive at a prima facie conclusion. It must be
recalled that summoning of accused to appear
the criminal court is a serious matter affecting
the dignity self-respect and image in the
society. A process of criminal court cannot be
made a weapon of harassment.

(12) Learned Magistrate has passed
a very cryptic order simply by saying that the
statement of complainant as well as witnesses
recorded under Sections 200 and 202 CrPC
are perused and accused are summoned such
order per se itself illegal which could not
stand the test of law."

36. Thus, from the aforesaid judgements
it is categorically clear that summoning of a
person is a very serious matter and ought not
to have been done in a routine manner. Before
summoning the Magistrate must satisfy
himself that there are sufficient grounds for
proceeding against the person and summoning
cannot be permitted to be done by a cryptic
order, which do not reflect the application of
mind of learned Magistrate.

37. Thus, from the perusal of the
impugned order dated 06.10.2017, passed by
learned Magistrate summoning the petitioners
herein it is apparent that the same is a cryptic
order
and
has
been
passed
without
categorically recording his satisfaction and
assigning any reason or its satisfaction whether
the offence under Section 406 is made out.
Since, in the previous F.I.R. filed by the
opposite party no.2 a Final Report was
submitted which was protested by the opposite
party no.2, which was rejected by the court
concerned and after delay of more than five
years, the instant complaint has been filed on
the same set of facts without there being any
special circumstances warranting the second
complaint to be entertained. Therefore, in the
considered opinion of this Court, the trial court
has erred in entertaining the second complaint
and further the order impugned is a very
cryptic order, whereby the applicants have
been summoned. Therefore, the same is not
sustainable in law and the same is accordantly
set-aside. Consequently, the order passed by
Revisional Court is also set-aside.

38. The petition under Article 227 is
allowed accordingly.

39.
In
view
of
the
facts
and
circumstances, since the application under
Section 482 Cr.P.C. has been filed with
delay of more than six years without their
being any explanation for the same and
further as already held in the considered
opinion of this Court the complainant is
trying to give criminal colour to the civil
dispute between the parties. In view thereof,
the Application under Section 482 Cr.P.C. is
dismissed.
----------
(2025) 3 ILRA 84
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 8117 of 2024
(Civil)

Raj Kumar Chauturvedi ...Petitioner
Versus
U.P. Awas Evam Vikas Parishad & Ors.
 ...Respondents
3 All. Raj Kumar Chaturvedi Vs. U.P. Awas Evam Vikas Parishad & Ors.
85
Counsel for the Petitioner:
Sri Rahul Sahai

Counsel for the Respondents:
Sri Krishna Mohan Garg, Sri Nipun Singh,
Sri Saurabh Pandey, Ms. Surabhi Pandey,
Sri Suresh Chandra Pandey

Civil Law-The Constitution of India, 1950Artcle 227 -The Code of Civil Procedure,
1908-Section 107, Order 6 Rule 17---
Once the amendment application has been
rejected and the same had not been
challenged, petitioner cannot be given liberty
to bring very same facts again after some
time by filing new application. In fact such
act of petitioner is barred by the Principle of
res judicata---Court has rightly rejected the
amendment application by the impugned
order---The appellate Court has ample power
to take additional evidence or to require
such evidence to be taken, the Appellate
Court shall have the same powers and shall
perform as nearly as may be the same duties
as are conferred and imposed by this Code
on
Courts
of
original
jurisdiction---no
illegality in the impugned order. (Para 11,
15 & 16)

Petition dismissed. (E-15)

List of Cases cited:

1.
Ashok
Kumar
Srivastava
Vs
National
Insurance Co. Ltd. & ors., AIR 1998 Supreme
Court 2046

2. B. V. Nagesh & anr. Vs H. V. Sreenivasa
Murthy, (2010) 13 SCC 530

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Rahul Sahai, learned
counsel for the petitioner, Sri K. M.
Garg, learned counsel for the respondent
nos. 3/1, 3/3 & 3/5, Sri S. C. Pandey,
learned counsel for the respondent no.
3/2 and Sri Saurabh Pandey, leanred
counsel for the respondent nos. 3/4/1 to
3/4/7.
2. Present petition has been filed
seeking for the following reliefs:-

" I. Issue a suitable order or
direction for setting aside the impugned
judgment/order dated 17.05.2024 passed
by Additional District Judge Court No. 10,
Mathura in Civil Appeal No. 40 of 2010
(Raj Kumar Chaturvedi and others Vs. U.P.
Awas Evam Vikas Parishad and others).

II. Issue a suitable order or
direction
to
allow
the
amendment
application 114 ka or in the alternative to
set-aside
the
judgment/order
dated
20.07.2018, 02.02.2019 and 27.01.2019
passed by the Additional District Judge,
Court No. 8, Mathura & Additional District
Judge/Special Judge, Court No. 4, Mathura
respectively."

3.
Learned
counsel
for
the
petitioner submitted that earlier land was
acquired by respondent No. 1 and suit no.
16 of 1988 for declaration and permanent
injunction has been filed. Brief facts of the
case are that land was acquired by
respondent no.1 but later on the said
proceeding
has
been
dropped
vide
notification dated 07.07.2005. Later on, the
said notification was recalled by the
respondent no.1 by another notification
dated 25.04.2008. Aggrieved that petitioner
had preferred a writ petition before this
Court being C.M.W.P. No.529 of 2009
which was allowed vide order dated
31.08.2010. During pendency of the
aforesaid
petition,
the
suit
of
the
plaintiff/petitioner was itself decided vide
judgement/decree dated 30.03.2010. Being
aggrieved, the petitioner has preferred Civil
Appeal No. 40 of 2010 before District
Judge, Mathura. During pendency of the
appeal as the writ petition filed earlier was
allowed,
petitioner
has
moved
two
amendment applications numbered as 65
86 INDIAN LAW REPORTS ALLAHABAD SERIES
Ka and 67 Kha which are based upon the
judgement of the High Court dated
31.08.2010.
The
said
amendment
applications were rejected vide order dated
20.07.2018 with the finding that judgement
of High Court shall be considered while
deciding the appeal.

4. He next submitted that in
between the respondent no.1 has filed
S.L.P. © Nos. 34271 of 2010 and 34090 of
2010 which was disposed of permitting the
appellant to seek a recall/review application
against the order dated 31.08.2010. The
recall application was filed for recalling of
the order dated 31.08.2010 which was
rejected by this Court vide order dated
07.04.2017. Against that respondent no.1
has filed Civil Appeal No.3025-3026 of
2022 before Hon'ble Apex Court which
was dismissed vide order dated 20.04.2022.

5. He next submitted that at this
stage petitioner has preferred amendment
application
to
incorporate
the
above
developments in the plaint, which has been
rejected
vide
impugned
order
dated
17.05.2024 on the ground that earlier also
the
similar
nature
of
amendment
application had already been dismissed by
this Court. He next submitted that in light
of new development by the order of this
Court as well as Hon'ble Apex court, fact
are necessary to be incorporated. Therefore,
the amendment application must have been
allowed and for that delay cannot be a
ground. So far as, the order dated
20.07.2018 is concerned, the delay cannot
be a ground in case some development has
taken place before the High Court. He next
submitted that though legal situation at the
stage of rejection of fist amendment
application vide order dated 20.07.2018 is
the same but factual aspect has been
changed and the same must have been
brought on record. He next submitted that
as the suit was decided in light of the
notification dated 25.04.2008 giving rights
to the private respondents, re-appreciation
of amendment is required. Therefore,
impugned orders are liable to be set aside.

6. Per contra, Sri K. M. Garg,
learned counsel for the respondent nos. 3/1,
3/3 submitted that order dated 20.07.2018
has never been challenged rather petitioner
has filed application 83 Ga and 84 Ga
alongwith affidavit for recalling the order
dated 20.07.2018 which was rejected vide
order dated 02.02.2019. Thereafter, he has
filed amendment application 87 Ka and 89
Ka for amending the memo of appeal
which was also rejected vide order dated
27.01.2019. The aforesaid orders passed in
the applications bearing nos. 65 Ka, 67 Ka,
87 Ka and 89 Ka have never been
challenged before the High Court. He
firmly submitted that in light of Section 96
C.P.C., petitioner has remedy to challenge
the said orders in the second appeal. He
also pointed out that while rejecting the
first amendment application 65 Ka trial
Court has clearly held that order of High
Court shall be considered at the time of
disposal of the appeal. Therefore, there is
no occasion for allowing the amendment
application. In light of Section 107 and 96
C.P.C,, appellate Court is having all power
and it may records its independent finding
while deciding the appeal. Therefore, in
case of new development, appellate Court
may re-appreciate the evidence and give its
own finding. In support of his contention,
he has relied upon the judgment of Hon'ble
Apex Court passed in B. V. Nagesh and
Another Vs. H. V. Sreenivasa Murthy,
(2010) 13 SCC 530.

7. He also pointed out that as the
issues
involved
in
first
amendment
3 All. Raj Kumar Chaturvedi Vs. U.P. Awas Evam Vikas Parishad & Ors.
87
application 65 Ka and 67 ka are the same
which is in the present amendment
application 114 ka, therefore, it is barred by
issue estoppel. Therefore, Court has rightly
rejected the application.

8.
I
have
considered
the
submissions made by learned counsel for
the parties and perused the record,
provisions of law as well as judgement
relied upon.

9.
From
perusal
of
record,
undisputed facts of the case are that during
pendency of Suit No. 16 of 1988 for
declaration of permanent injunction, land in
dispute earlier acquired by respondent no.1
has been dropped vide notification dated
07.07.2005, but later on said notification
was recalled by respondent no.1 vide
another notification dated 25.04.2008.

10. Being aggrieved, petitioner
preferred writ petition i.e. C.M.W.P. No.
529 of 2009 which was allowed vide order
dated 31.08.2010. During pendency of
petition the Suit No. 16 of 1988 was
decided vide judgment and decree dated
30.03.2010. Against that petitioner has
preferred Civil Appeal No. 40 of 2000
before District Judge, Mathura as C.M.W.P.
No. 529 of 2009 which was allowed vide
order dated 31.08.2010. During pendency of
appeal, petitioner has moved two amendment
applications numbered as 65 Ka and 65 Kha.
In light of judgement of High Court dated
31.08.2010, both the amendment applications
have
been
rejected
vide order dated
20.07.2018 with the finding that judgement
of High Court shall be considered while
deciding the appeal. In between respondent
no.1 has filed S.L.P. Nos. 34271 of 2010 and
34090 of 2010, which was dismissed with
permission to move recall/review application
against High Court order dated 31.08.2010.
Recall application was filed to recall the order
dated 31.08.2010 which was rejected by this
Court vide order dated 04.07.2017. Against
that respondent no.1 has preferred Civil
Appeal No. 3025-3026 of 2022 before Apex
Court which has also been dismissed. At this
stage, again the amendment applications in
question have been filed to bring the facts on
record, which have been rejected vide
impugned order dated 17.05.2024 on the
ground that earlier also similar nature of
amendment application had already been
dismissed by this Court. The only issue for
the Court as to whether after dismissal of
S.L.P., Civil Appeal No. 3025-3026 of 2022,
amendment applications may have been
allowed or not.

11. There is no dispute on the point
that to bring the new facts after dismissal of
writ petition vide judgment and order dated
31.08.2010, amendment application was filed
which was rejected with the observation that
aforesaid facts might be seen by the Apex
Court while taking final decision. Now in
second litigation after dismissal of Civil
Appeal No. 3025-3026 of 2022, there is no
new fact except to bring the very same facts
before this Court which came into picture
after allowing the C.M.W.P. No. 529 of 2009
vide order dated 31.08.2010. Therefore, once
earlier the amendment application has been
rejected vide order dated 20.07.2018 and had
not been challenged, petitioner cannot be
given liberty to bring very same facts again
after some time by filing new application. In
fact such act of petitioner is barred by the
Principle of res judicata, therefore, Court has
rightly rejected the amendment application by
the impugned order.

12. This issue has also been
considered by the Apex Court in the matter
of Ashok Kumar Srivastava Vs. National
Insurance Co. Ltd. And others, AIR 1998
88 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme
Court
2046.
The
relevant
paragraph nos. 14 and 15 are being quoted
as under:-

"14. Though the said explanation
may not stricto sensu apply to the trial
stage, the principle couched in it must gain
application thereto. It is immaterial that the
writ petition was filed only subsequently
because the findings made therein became
final as no appeal was filed against the
judgement. The basic idea in the rule of res
judicata has sprouted from the maxim
"nemo debet bis vexari pro una at eadem
causa" (no man should be vexed twice over
for the same cause). In Y. B. Patil V. Y. L.
Patil, (1976) 4 SCC 66: (AIR 1977 SC
392), a three-judge Bench of this Court
considered the effect of a decision rendered
in a writ petition at subsequent stages of
the same lis. It held: "The principles of res
judicata can be invoked not only in
separate subsequent proceedings, they also
get attracted in subsequent stage of the
same proceedings. Once an order made in
the course of a proceeding becomes final, it
would be finding at the subsequent stage of
that proceeding.

15. Thus, the legal position is
clear and the respondent cannot now reagitate
the
question
regarding
maintainability of the suit under Section 34
of the Act. However, learned counsel
adopted an alternative contention before us
that the suit is in effect one for specific
enforcement of a contract and such a suit is
not conceived under Section 14 of the Act
and hence it is not maintainable. According
to the learned counsel, the reliefs claimed
in the suit, if granted, would result in
specific enforcement of a contract of
employment. Section 14 (1) (a) of the Act
makes
it
clear
that
a
contract
of
employment is not specifically enforceable
since non performance of it can be
compensated by money, contended the
counsel."

13.
As
per
Section
107
of
C.P.C.,appellate Court is having all power
to take additional evidence. Section 107
C.P.C. is being quoted here-in-below-

"107. Powers of Appellate Court-
(1)
Subject
to
such
conditions and
limitations as may be prescribed, an
Appellate Court shall have power- (a) to
determine a case finally; (b) to remand a
case; (c) to frame issues and refer them for
trial; (d) to take additional evidence or to
require such evidence to be taken. (2)
Subject as aforesaid, the Appellate Court
shall have the same powers and shall
perform as nearly as may be the same
duties as are conferred and imposed by this
Code on Courts of original jurisdiction in
respect of suits instituted therein."

14. Power of Appellate Court also
considered by the Apex Court in the matter
of B. V. Nagesh and Another Vs. H. V.
Sreenivasa Murthy, (2010) 13 SCC 530
and Apex Court has held that while
deciding the appeal it is duty of the High
Court to deal with all the issues and
evidence led by the parties before recording
finding. Relevant paragraph nos.3 and 4 are
being quoted here-in-below-

"3. How the regular first appeal
is to be disposed of by the appellate
Court/High Court has been considered by
this Court in various decisions. Order 41 of
C.P.C. deals with appeals from original
decrees. Among the various rules, Rule 31
mandates that the judgment of the appellate
Court shall state:

(a) the points for determination;

(b)
the
decision
thereon;
3 All. M/s LR Print Solutions Vs. M/s Exflo Sanitation Pvt. Ltd. & Ors.
89

(c) reasons for the decision; and
-

(d) where the decree appealed
from is reversed or varied, the relief to
which the appellant is entitled.

4. The appellate Court has
jurisdiction to reverse or affirm the
findings of the trial Court. The first appeal
is a valuable right of the parties and unless
restricted by law, the whole case therein is
open for re-hearing both on questions of
fact and law. The judgment of the appellate
Court must, therefore, reflect its conscious
application of mind and record findings
supported by reasons, on all the issues
arising along with the contentions put-forth
and pressed by the parties for decision of
the appellate Court. Sitting as a court of
first appeal, it was the duty of the High
Court to deal with all the issues and the
evidence
led
by
the
parties
before
recording its findings. The first appeal is a
valuable right and the parties have a right
to be heard both on questions of law and on
facts and the judgment in the first appeal
must address itself to all the issues of law
and fact and decide it by giving reasons in
support of the findings."

15. From perusal of 107 C.P.C. as
well as judgment of Hon'ble Apex Court in
B. V. Nagesh(Supra), it is apparent that
appellate Court has ample power to take
additional evidence or to require such
evidence to be taken, the Appellate Court
shall have the same powers and shall
perform as nearly as may be the same
duties as are conferred and imposed by this
Code on Courts of original jurisdiction.
Therefore, there is no illegality in the
impugned order dated 17.05.2024.

16. Therefore, in light of facts of
the case, provisions of CPC and law laid
down by the Hon'ble Apex Court in B. V.
Nagesh(Supra), I found no infirmity in the
impugned order dated 17.05.2024. Petition
lacks merits and is accordingly, dismissed.

17. No order as to costs.
----------
(2025) 3 ILRA 89
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.03.2025

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Matters Under Article 227 No. 8387 of 2024

M/s LR Print Solutions ...Petitioner
Versus
M/s Exflo Sanitation Pvt. Ltd. & Ors.
 ...Respondents

Counsel for the Petitioner:
Mr. Abhishek Kumar, Mr. Ishwar Kumar
Upadhyay

Counsel for the Respondents:
Mr. Ishir Sripat

Civil Law-The Constitution of India, 1950Artcle 227 - The Arbitration & Conciliation
Act, 1996-Sections 34 & 37- Payment of
mense profit for not complying the award
in its letter and spirit- Petitioner has not
vacated the premises in question within 30 days
from the date of passing the award and further
the petitioner has not brought any material on
record to show that the award was stayed by
any of the competent Court--- The arbitral
award was not stayed or any material was
brought on record otherwise and ultimately the
award has been affirmed by the Apex Court and
no proceedings are pending thereafter---the
contesting respondent no. 1 is entitled for
mesne profits as the award was not complied
with in its letter and spiri. (Para 22 & 25)

Petition lacks merit, dismissed. (E-15)

List of Cases cited: