# Rajendra Prasad Tiwari v. State of U.P. & Ors. (s)

- **Citation:** (2026) 4 ILRA 1638
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-01
- **Case number:** Civil Misc. Review Application Defective No. 41 of 2026
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-tiwari-v-state-of-u-p-ors-s-54386
- **Pages:** 8

## Text

1638 INDIAN LAW REPORTS ALLAHABAD SERIES
3.12.2025 during the argument in Criminal Misc. Writ Petition No.25002 of 2025. Still further we
are of the view that though a suit with regard to permanent injunction was mentioned in the writ
petition but regarding it, no ground was raised at the time of the argument. Also, today the civil suit
being Original Suit No.1689 of 2023 has been brought to our notice and this suit which was
challenging a certain will of the father of the petitioner and his brother Yashwant Singh had no
bearing to this case. We also find that even though various civil suits etc. might have been there in
existence but the main allegation in the FIR was with regard to the fabrication of the signatures by
the first informant of the mother of the petitioner who had died and, therefore, definitely it was a
case where investigation was required and it had to be found out prima facie if the accused in the
FIR was guilty. Still further, we are of the view that the petitioner had availed the remedy of filing
an anticipatory bail and, therefore, no interference in the instant review petition is called for.

10. The Review Application is, accordingly, dismissed.
----------
(2026) 4 ILRA 1638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.04.2026

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Civil Misc. Review Application Defective No. 41 of 2026

Rajendra Prasad Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Party(s)

Issue for Consideration
Whether review petition cannot be filed through a counsel who was not a counsel in the writ petition

Head Notes
The Code of Civil Procedure-1908- Section 114; Order 47- Review application can only be filed
where there is an error apparent on the face of the record and even where there is an error
which is apparent on the face of record, the review application should be filed by the Counsel
who had advanced submissions in the original proceedings- A review petition is not a rehearing
or an appeal against the original order and, therefore, new grounds cannot be taken in a review
petition- By seeking a review on the ground that the order impugned in the Writ Petition suffers
from perversity, the review applicant is seeking a rehearing of the matter, which is not
permissible in law.

Held- Review application filed through another Counsel cannot be entertained-Order sought to be reviewed
does not suffer from any error, much less an error apparent on the face of the record. The Review
Application lacks merit and the same is dismissed. (E-15)

(Para 8, 12, 16 & 21)
Case Law Cited
M. Poornachandran & Another Vs. State of Tamil Nadu and Others: (1996) 6 SCC 755; Tamil Nadu Electricity
Board & Another Vs. N. Raju Reddiar & Anr: ( 1997) 9 SCC 736; Thungabhadra Industries Ltd. v. Govt. of
4 All. Rajendra Prasad Tiwari Vs. State of U.P. & Ors.
1639
A.P.: AIR 1964 SC 1372; State of W.B. v. Jai Hind (P) Ltd.: 2026 SCC OnLine SC 157; Malleeswari v. K.
Suguna: 2025 SCC OnLine SC 1927; Shankar Prasad v. State of U.P.: 2021 SCC OnLine All 1852;

List of Acts
The Code of Civil Procedure-1908

List of Keywords
Review Application; Can be filed: by the Counsel who had advanced submissions in the original proceedings;
Review not a rehearing or an appeal

Case Arising From
The applicant is seeking review of a judgment and order dated 07.01.2026 passed by this Court dismissing
WritC No. 41 of 2026, which was filed by the review applicant/petitioner challenging the validity of an order
dated 21.05.2019 passed by the SubDivisional Magistrate, Ambedkar Nagar canceling the fair price shop
license of the petitioner, which order had been affirmed by means of an order dated 08.12.2025 passed by
the Deputy Commissioner, Ayodhya Division, Ayodhya in appeal filed by the petitioner under Para 13(3) of
U.P. Essential Commodities(Regulation of Sale and Distribution) Order, 2016.

Appearances for Parties
Counsel for Applicant(s) : Saima Khan, Zainul Abbas
Counsel for Opposite Party(s) :

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Ms. Saima Khan, learned counsel for the review applicant and Sri Rahul Shukla,
learned Additional Chief Standing Counsel alongwith Sri Alok Srivastava, learned Standing
Counsel for the State of U.P. representing the respondents no. 1, 2 & 3.

2. By means of instant application, the applicant is seeking review of a judgment and order
dated 07.01.2026 passed by this Court dismissing Writ-C No. 41 of 2026, which was filed by the
review applicant/petitioner challenging the validity of an order dated 21.05.2019 passed by the
Sub-Divisional Magistrate, Ambedkar Nagar canceling the fair price shop license of the petitioner,
which order had been affirmed by means of an order dated 08.12.2025 passed by the Deputy
Commissioner, Ayodhya Division, Ayodhya in appeal filed by the petitioner under Para 13(3) of
U.P. Essential Commodities(Regulation of Sale and Distribution) Order, 2016.

3. The learned Additional Chief Standing Counsel has raised a preliminary objection that the
writ petition had been filed through Sri Ajay Kumar Pandey, Advocate and the aforesaid counsel
had advances submissions in support of the writ petition. The review application has been filed by
another counsel Ms. Saima Khan. He has submitted that in view of the law laid down by the
Hon'ble Supreme Court in the case of M. Poornachandran & Another Vs. State of Tamil Nadu
and Others: (1996) 6 SCC 755 and Tamil Nadu Electricity Board & Another Vs. N. Raju
Reddiar & Anr: (1997) 9 SCC 736, a review petition cannot be filed through a counsel who was
not a counsel in the writ petition. .

4. The learned counsel for the review applicant has also placed reliance on the decision of the
Supreme Court in the Case of Tamil Nadu Electricity Board and Another Vs. N. Raju Reddiar
and Another: (1997) 9 SCC 736.
1640 INDIAN LAW REPORTS ALLAHABAD SERIES

5. In M. Poornachandran v. State of T.N.:, (1996) 6 SCC 755, a Review Petition No. 2670
of 1996 in CA No. 1867 of 1992, had been dismissed by holding as under: -

"The record of the appeal indicates that Shri Sudarsh Menon was the Advocate-onRecord when the appeal was heard and decided on merits. The review petition has been filed by
Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was
he present at the time of arguments. It is unknown on what basis he has written the grounds in
the review petition as if it is a rehearing of an appeal against our order. He did not confine to the
scope of review. It would not be in the interest of the profession to permit such practice. That
apart, he has not obtained 'No Objection Certificate' from the Advocate-on-Record in the appeal,
in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the 'No
Objection Certificate' would be the basis for him to come on record. Otherwise, the Advocate-onRecord is answerable to the Court. The failure to obtain the 'No Objection Certificate' from the
erstwhile counsel has disentitled him to file the review petition. Even otherwise, the review petition
has no merits. It is an attempt to reargue the matter on merits."

(Emphasis added)

6. Thereafter another application for clarification of the order, an application for review
whereof had already been rejected vide judgment in the case of M. Poornachandran v. State of
T.N. (supra) was filed through another Advocate. The Hon'ble Supreme Court dismissed the
application by a judgment in Tamil Nadu Electricity Board & Another Vs. N. Raju Reddiar &
Anr: (1997) 9 SCC 736 by observing that: -

"1. It is a sad spectacle that a new practice unbecoming and not worthy of or conducive
to the profession is cropping up. Mr Mariaputham, Advocate-on-Record had filed vakalatnama for
the petitioner-respondent when the special leave petition was filed. After the matter was disposed
of, Mr V. Balachandran, Advocate had filed a petition for review. That was also dismissed by this
Court on 24-4-1996. Yet another advocate, Mr S.U.K. Sagar, has now been engaged to file the
present application styled as "application for clarification", on the specious plea that the order is
not clear and unambiguous. When an appeal/special leave petition is dismissed, except in rare
cases where error of law or fact is apparent on the record, no review can be filed; that too by the
Advocate-on-Record who neither appeared nor was party in the main case. It is salutary to note
that the court spends valuable time in deciding a case. Review petition is not, and should not be,
an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time,
a practice to file such review petitions as a routine; that too, with change of counsel, without
obtaining consent of the Advocate-on-Record at earlier stage. This is not conducive to healthy
practice of the Bar which has the responsibility to maintain the salutary practice of profession."

(Emphasis added)

7. The learned counsel for the review applicant has submitted that she has obtained a no
objection certificate from the Counsel who had filed and argued the Writ Petition and, therefore,
she has the right to file the review application. She has further submitted that even in T.N.
Electricity Board v. N. Raju Reddiar (supra), the Hon'ble Supreme Court has carved out an
4 All. Rajendra Prasad Tiwari Vs. State of U.P. & Ors.
1641
exception against the prohibition against filing of review petitions for the "rare cases where error
of law or fact is apparent on the record". She has submitted that the present case is one of those
rare cases as it suffers from a patent error of fact. The petitioner was held prima facie guilty in a
preliminary inquiry, thereafter, an opportunity to show cause was given to him and without any
evidence having been led to prove the charges against the petitioner, he has been held guilty. She
has submitted that as the order impugned in the writ petition suffers from perversity which renders
it unsustainable in law, the present case falls in the category of those rare cases, in which a review
of the order is permitted.

8. The aforesaid submission of the learned Counsel for the applicant is based on a misreading
of the judgment of the Hon'ble Supreme Court. What the Hon'ble Supreme Court has laid down is,
that a review application cannot be filed in a routine manner and it can only be filed in rare cases,
where an error of law or fact is apparent on the face of the record. The second principle laid down
by the Hon'ble Supreme Court is that review application can be filed by the Counsel who had
advanced submissions in the original proceedings, as any other Counsel will not be in a position to
point out what submissions had been advanced before the Court at the time of passing of the order
sought to be reviewed. A review petition is not a rehearing or an appeal against the original order
and, therefore, new grounds cannot be taken in a review petition. It would not be in the interest of
the profession to permit such practice. The Hon'ble Supreme Court has not held that where the
order suffers from an error apparent on the face of the record, a review application can be filed
through a new Counsel also. A review application can only be filed where there is an error apparent
on the face of the record and even where there is an error which is apparent on the face of record,
the review application should be filed by the Counsel who had advanced submissions in the
original proceedings. Therefore, the submission of the learned Counsel for the review applicant is
misconceived and the same is rejected.

9. The learned counsel for the review applicant next submitted that the provision for filing
applications for review before this High Court is contained in Chapter V Rule 12 of the Allahabad
High Court Rules, which reads as follows: -

"12. Application for review. :- An application for the review of a Judgment shall be
presented to the Registrar General, who shall endorse thereon the date when it is presented and lay
the same as early as possible before the Judge or Judges by whom such judgment was delivered
along with an office report as to limitation and sufficiency of courtfees. If such Judge or Judges or
any one or more of such Judges be no longer attached to the court, the application shall laid
before the Chief Justice who shall having regard to the provisions of Rule 5 of Order XL VII of
the Code, nominate a Bench for the hearing of such applications :

 Provided that an application for the review of a judgment of one Judge who is precluded
by absence or other cause for a period of six months next after the presentation of the application
from considering the decree or order to which the application refers, shall be heard or disposed of
by a single Judge, and that an application for the review of a judgment of two or more Judges, any
one or more of whom is or are precluded by absence or other cause for a period of six months next
after the presentation of the application from considering the decree or order to which the
application refers, shall be heard or disposed of by a Bench consisting of the same or a greater
number of Judges. Explanation:- For the purposes of this rule the expression 'no longer attached to
1642 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court' shall be deemed to include absence from the permanent place of sitting on account of the
directions given under rule 17 of this Chapter, illness or any other cause.."

10. The learned Counsel for the applicant has submitted that the aforesaid Rule permits
hearing of a review application by a Judge other then the Judge who had decided the original
proceedings, in case of non-availability of the Judge who had decided the original proceedings. As
per the learned counsel for the petitioner the same analogy should be applied to the counsel also
and if the earlier counsel is not available for filing review application or advancing submissions,
another counsel should be permitted to file a review application and advance submissions in
support thereof.

11. I am unable to accept the aforesaid submission of the learned counsel for the review
applicant as firstly, in case the judge who had decided the earlier original proceedings is not
attached to the Court, the review applicant can not be left remedy-less and in that case the Rule
rightly provides that the review application shall be heard and disposed of by another Bench. It is
not the case that the counsel who had filed the writ petition and had advanced submissions in
support thereof, is not practicing before this Court any more and it is not the case that the counsel is
not available for filing the review petition and advancing submissions in support thereof. The only
thing is that the applicant/petitioner has chosen to avail the services of another counsel. Therefore
the analogy of Chapter V Rule 12 of the Allahabad High Court Rules, as pressed by the learned
counsel for the petitioner, would not apply to the present case.

12. Therefore, I find force in the submission of Sri Rahul Shukla, learned Additional Chief
Standing Counsel, that the review application filed through another Counsel cannot be entertained.

13. The order sought to be reviewed is a detailed order, wherein this Court has noted that the
order dated 21.12.2019 shows that during inquiry, statements of 40 persons have been recorded
who pointed out the illegalities committed by the petitioner in distribution of essential
commodities. The Village Pradhan gave written statement stating that the essential commodities for
the month of October 2018 had not been distributed till 27.10.2018. After a complaint was made by
the card holders, the petitioner made inadequate distribution on 28/29.10.2018. He has charged
excessive amount from the card holders. After recording of statements of card holders, the
petitioner's shop was inspected. The stock register was not available in the shop. The petitioner's
brother who was present at the shop at the time of inspection was directed to produce the stock
register the following day, but the petitioner did not do so. It was also found during inspection that
the sign board, stock board, rate board, notice board and toll free number of the department was not
displayed at the shop. The petitioner was not using electronic weighing scale or standard weights
and weighing scale certified by the legal meteorology department. The petitioner's license was
suspended by means of order dated 06.11.2018. The petitioner submitted his explanation on
11.10.2018 along with a copy of the stock register. He stated that he could not distribute the
essential commodities because of some criminal actions committed on 30.09.2018 in which he and
his family members had suffered injuries and were under going treatment and he had remained
admitted to hospital since 30.09.2018 to 09.10.2018. He had started distribution through an
assistant since 12.10.2018. It is recorded in the impugned order that the petitioner's explanation and
the evidence adduced by him, including the distribution register, was examined by the Regional
4 All. Rajendra Prasad Tiwari Vs. State of U.P. & Ors.
1643
Food Officer who found that the distribution register had not been properly filled. Some pages
thereof contained signature of large number of persons than the persons whose names were
mentioned and some other pages mentioned lesser number of signatures than the names of persons
mentioned. The distribution register had not been verified by the competent officer from which it
appeared that the petitioner had fabricated the register.

14. This Court has also taken into consideration that Para 7 (8) of U.P. Essential Commodities
(Regulation of Sale and Distribution) Order, 2016 merely provides that an inquiry regarding
irregularities in distribution by a fair price shop owner shall be conducted by the designation officer
or by the District Magistrate. After inquiry, if the license of fair price shop owner is suspended
along with a show cause notice by the competent authority, then the reply/ explanation of show
cause notice by fair price shop owners will be examined by an officer at least one rank above the
inquiry officer. If the preliminary inquiry had been conducted by a district level officer, then the
explanation by fair price shop owners shall be examined by another district level officer. It does not
provide for recording of statements of witnesses and giving opportunity of their cross-examination
by the shop holder.

15. This Court has already examined the plea raised on behalf of the petitioner that the
impugned order suffers from perversity and after a detailed discussion, has concluded in para 8 of
the judgment dated 07.01.2026 that "the S.D.M. arrived at a finding of guilt of the petitioner after
taking into consideration the entire record and the order cannot be said to be perverse. The
findings of S.D.M. has been affirmed by the Deputy Commissioner, Food during appeal."

16. Now by seeking a review on the ground that the order impugned in the Writ Petition
suffers from perversity, the review applicant is seeking a rehearing of the matter, which is not
permissible in law.

17. In Thungabhadra Industries Ltd. v. Govt. of A.P.: AIR 1964 SC 1372, the Hon'ble
Supreme Court held that: -

"7....A review is by no means an appeal in disguise whereby an erroneous decision is
reheard and corrected, but lies only for patent error. We do not consider that this furnishes a
suitable occasion for dealing with this difference exhaustively or in any great detail, but it would
suffice for us to say that where without any elaborate argument one could point to the error and
say here is a substantial point of law which stares one in the face, and there could reasonably be
no two opinions, entertained about it, a clear case of error apparent on the face of the record
would be made out..."

18. The aforesaid principle has consistently been followed till date, and it has recently been
followed in State of W.B. v. Jai Hind (P) Ltd.: 2026 SCC OnLine SC 157.

19. In Malleeswari v. K. Suguna: 2025 SCC OnLine SC 1927, the Hon'ble Supreme Court
held that: -
1644 INDIAN LAW REPORTS ALLAHABAD SERIES

"15. It is axiomatic that the right of appeal cannot be assumed unless expressly conferred
by the statute or the rules having the force of a statute. The review jurisdiction cannot be assumed
unless it is conferred by law on the authority or the Court. Section 114 and Order 47, Rule 1 of
CPC deal with the power of review of the courts. The power of review is different from appellate
power and is subject to the following limitations to maintain the finality of judicial decisions:

15.1 The review proceedings are not by way of an appeal and have to be strictly confined
to the scope and ambit of Order 47 Rule 1 of CPC.

15.2 Review is not to be confused with appellate powers, which may enable an appellate
court to correct all manner of errors committed by the subordinate court.

15.3 In exercise of the jurisdiction under Order 47 Rule 1 of CPC, it is not permissible
for an erroneous decision to be reheard and corrected. A review petition, it must be remembered,
has a limited purpose and cannot be allowed to be an appeal in disguise.

15.4 The power of review can be exercised for the correction of a mistake, but not to
substitute a view. Such powers can be exercised within the limits specified in the statute governing
the exercise of power.

15.5 The review court does not sit in appeal over its own order. A rehearing of the
matter is impermissible. It constitutes an exception to the general rule that once a judgment is
signed or pronounced, it should not be altered. Hence, it is invoked only to prevent a miscarriage
of justice or to correct grave and palpable errors.

16. To wit, through a review application, an apparent error of fact or law is intimated to
the court, but no extra reasoning is undertaken to explain the said error. The intimation of error at
the first blush enables the court to correct apparent errors instead of the higher court correcting
such errors. At both the above stages, detailed reasoning is not warranted.

17. Having noticed the distinction between the power of review and appellate power, we
restate the power and scope of review jurisdiction. Review grounds are summed up as follows:

17.1 The ground of discovery of new and important matter or evidence is a ground
available if it is demonstrated that, despite the exercise of due diligence, this evidence was not
within their knowledge or could not be produced by the party at the time, the original decree or
order was passed.

17.2 Mistake or error apparent on the face of the record may be invoked if there is
something more than a mere error, and it must be the one which is manifest on the face of the
record. Such an error is a patent error and not a mere wrong decision. An error which has to be
established by a long-drawn process of reasoning on points where there may conceivably be two
opinions can hardly be said to be an error apparent on the face of the record.

17.3 Lastly, the phrase 'for any other sufficient reason' means a reason that is sufficient
on grounds at least analogous to those specified in the other two categories.

18. Courts ought not mix up or overlap one jurisdiction with another jurisdiction..."

20. Sri Rahul Shukla, learned Additional Chief Standing Counsel has placed reliance on a
decision in Shankar Prasad v. State of U.P.: 2021 SCC OnLine All 1852, wherein a Division
Bench of this Court examined the following two questions referred to it: -

"(a) What are the parameters of principles of natural justice to be followed in inquiries
conducted by Licensing Authority on complaints of irregularities in the distribution of Essential
Commodities?
4 All. State of U.P. Vs. Tulsi Ram
1645

(b) Whether the observation made in Paragraph 35 of the Full Bench decision in Puran
Singh v. State of U.P. (2010) 2 UPLBEC 947 regarding holding of "full fledged enquiry" after
suspension of license can be read in such a manner as would require the whole gamut of steps
required in disciplinary proceedings of Government servants to be followed?"

The Division Bench gave the following answers to the questions: -

(i) It is held that the parameters for an enquiry to be conducted against the licensee for
the irregularities committed by the licensee in terms of the Distribution of Essential Commodities is
on broad principles of natural justice where the competent authority shall provide a show cause
notice to the licensee indicating the violations and irregularities committed by the licensee with
sufficient particularity to enable him to respond to the same and after affording an opportunity
of hearing, the decision can be taken by the competent authority by a reasoned and a speaking
order. The enquiry envisaged is summary in nature and does not entail a detailed hearing, akin
to a departmental enquiry;

(ii) It is held that the words "full fledged enquiry" as used by the Full Bench of this Court
in the decision of Puran Singh (supra) has to be read in context with paras 4 and 5 of the
Government Order of July 2004 and the scheme therein which merely requires adherence to the
principles of natural justice and does not provide for a detailed enquiry involving various stages
and steps as are required to be met in disciplinary enquiry against a government servant."

(Emphasis added)

21. The order sought to be reviewed is in conformity with the aforesaid principles laid down
by the Division Bench in Shankar Prasad v. State of U.P. (supra) and it does not suffer from any
error, much less an error apparent on the face of the record. The Review Application lacks merit
and the same is dismissed.
----------
(2026) 4 ILRA 1645
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.04.2026

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE MRS. BABITA RANI, J.

Government Appeal No. 91 of 1987

State of U.P. ...Appellant
Versus
Tulsi Ram ...Respondent

Issue for Consideration
A. Whether the learned Trial Court has rightly accorded the benefit of self-defence to the accused?
B. Whether the failure of the prosecution in explaining the injuries on the person of the accused renders the
entire prosecution story untrustworthy?