# Ram Babu Gupta v. Presiding Officer, Labour Court, U.P., Allahabad and another

- **Citation:** (2005) 1 ILRA 135
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-15
- **Case number:** Civil Misc. Writ Petition No. 9609 of 2004
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-babu-gupta-v-presiding-officer-labour-court-u-p-allahabad-and-another-40306
- **Pages:** 3

## Headnote

Civil Procedure Code, 1908 (as amended
on
2004)-Applicability-Rejection
of
application for adjournment of evidence
on the personnel ground of counselsufficient cause shown for adjournmentRejection illegal.

Held: Para 3 & 4

An amendment in the law of procedure
would ordinarily be retrospective but
that is only a presumption and where a
construction giving retrospectively to a
provision is textually inadmissible it
would have to be taken that the
provision is prospective in operation.

From a perusal of the material on record,
it
transpires
that
counsel
for
the
petitioner was busy at home due to
personal reason and could not attend the
court. It would thus appear that cause
was shown which as contained in the
application was sufficient for adjourning
the case and the trial court wrongly and
illegally rejected the same. To cap it all,
the function of the court is to advance
the cause of justice. In my view, the
court should not act with rigidity in such
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
136
matter unless it is of the conclusion on
valid reason and grounds that nonappearance was with a specific purpose
to a design i.e. it was designed to
protract the litigation. In the facts and
circumstances
of
the
present
case,
absence of counsel on a particular date
unless it was deliberate or with the
avowed object of protracting expeditious
disposal of the matter should not be
treated as default on the part of the
litigant himself.
Case law discussed:
2003 ALR 424
AIR 1927 PC 242
AIR 1975 SC 1843

## Text

http://www.allahabadhighcourt.nic.in
1All] Ram Babu Gupta V. Presiding Officer, Labour Court, U.P., Allahabad and another
135
of a workman. Once an incumbent is
appointed as an apprentice he will
continue to be apprentice unless a formal
order of appointment is followed.

7. I have heard learned counsel for
the parties at length and find that the facts
of the present case is squarely covered
with the facts and the principles laid down
in the decision by the apex Court rendered
in U.P. State Electricity Board Vs. Shri
Shiv Mohan Singh and another (Supra)
cited by the learned Standing Counsel for
respondent no. 2. In the present case,
after thorough examination and critical
scrutiny of the pleadings of the parties
and the relevant material and the evidence
adduced by the parties brought on record,
the respondent no. 1- labour court has
arrived at a well reasoned award dated
11.9.2000 (Annexure No. 5 to the writ
petition). The petitioner has not been able
to demonstrate before this Court that the
findings of fact recorded in the impugned
award
suffers
from
any
illegality,
perversity or error apparent on the face of
the record. More so, the said findings of
fact, arrived at by the labour courtrespondent no. 1 on the basis of which the
impugned award has been passed, being
based on relevant material on record, is
not open to challenge before this Court
while exercising its special and extra
ordinary jurisdiction under Article 226 of
the Constitution of India.

Accordingly, the writ petition fails
and is dismissed. No order as to costs.
Petition Dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2004

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 9609 of 2004

Mohan Singh

...Petitioner
Versus
District Judge, Varanasi and others

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Pandey

Counsel for the Respondents:
Sri P.N. Tripathi
Sri T.N. Tiwari
S.C.

Civil Procedure Code, 1908 (as amended
on
2004)-Applicability-Rejection
of
application for adjournment of evidence
on the personnel ground of counselsufficient cause shown for adjournmentRejection illegal.

Held: Para 3 & 4

An amendment in the law of procedure
would ordinarily be retrospective but
that is only a presumption and where a
construction giving retrospectively to a
provision is textually inadmissible it
would have to be taken that the
provision is prospective in operation.

From a perusal of the material on record,
it
transpires
that
counsel
for
the
petitioner was busy at home due to
personal reason and could not attend the
court. It would thus appear that cause
was shown which as contained in the
application was sufficient for adjourning
the case and the trial court wrongly and
illegally rejected the same. To cap it all,
the function of the court is to advance
the cause of justice. In my view, the
court should not act with rigidity in such
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
136
matter unless it is of the conclusion on
valid reason and grounds that nonappearance was with a specific purpose
to a design i.e. it was designed to
protract the litigation. In the facts and
circumstances
of
the
present
case,
absence of counsel on a particular date
unless it was deliberate or with the
avowed object of protracting expeditious
disposal of the matter should not be
treated as default on the part of the
litigant himself.
Case law discussed:
2003 ALR 424
AIR 1927 PC 242
AIR 1975 SC 1843

(Delivered by Hon'ble S.N. Srivastava, J.)

Petition in hand has been filed
assailing the order dated 25.3.2003 passed
by Civil Judge (J.D.) City Varanasi in
Suit No.1203 of 1997.

1. It would appear that by means of
order dated 20.5.2003, application filed
by the petitioner seeking adjournment was
rejected and evidence was ordered to be
closed. Thereafter, application filed for
recall of that order also came to be
rejected by means of order dated
1.11.2003. Revision preferred against the
said order was also dismissed.

2. I have heard learned counsel for
the parties and perused the impugned
orders. It would transpire that evidence of
the petitioner was closed on the ground
that the petitioner was disentitled to
adjournment in view of the amended
provision. It is evident from the record,
that statement of one of the witnesses was
recorded and the matter was fixed for
cross examination and s ctatements of
other witnesses. It would further appear
that on the date fixed, counsel for the
petitioner had not attended the court on
that date and therefore, application for
adjournment was moved. In connection
with it, learned counsel for the petitioner
submitted that the provisions of amended
provisions are not intended for application
to a suit instituted prior to amendment. In
the instant case the suit came to be
instituted in the year 1997 while the
amendment was brought about with effect
from the year 2002 and therefore,
proceeds the submission, impugned order
of
rejection
of
application
for
adjournment and closure of evidence of
the petitioner was impaired. Per contra,
learned counsel for the Opp. parties
vehemently lent support to the impugned
order arguing that the amended provisions
pertain to the matter of procedure and
thus would be applicable to the present
case.

3. In the perspective of the above
controversy, I feel called to say that the
matter
whether
amended
provisions
would be applicable to a suit instituted
prior to the amendment, stands clinched
by two decisions of the Court firstly, the
decision reported in Waqf Mausooma
Syed Husain v. Dilip Kumar Jain1. The
quintessence of the view taken by the
Court converging to the conclusion that
the amendment would be prospective and
not retrospective is that "an amendment in
the law of procedure would ordinarily be
retrospective
but
that
is
only
a
presumption and where a construction
giving retrospectively to a provision is
textually inadmissible it would have to be
taken that the provision is prospective in
operation." Reference in this connection
was made to the decision in Delhi
Clothes and General Mill Company

1 2003 ALR 424
http://www.allahabadhighcourt.nic.in
1All] Mohan Singh V. District Judge, Varanasi and others
137
Ltd. v. I.T. Commissioner2 and Jose
Decosta v. Basora Sadashiv3.

4. Yet another aspect is whether on
account of non-appearance of the counsel
for the petitioner, the petitioner could be
held to have committed default. It would
appear that default if any was on account
of absence of the counsel. In this
connection, I feel called to observe that a
litigant engages a counsel and entrusts
him with the brief and all requisite papers
in order to represent him in a judicial
court. The question is if counsel absents
himself on account of some unforeseen
emergency and is not able to represent his
client, would it be deemed to be a default
on the part of litigant himself. An
advocate means one who assists his client
with advice and pleading for him. From a
perusal of the material on record, it
transpires that counsel for the petitioner
was busy at home due to personal reason
and could not attend the court. It would
thus appear that cause was shown which
as contained in the application was
sufficient for adjourning the case and the
trial court wrongly and illegally rejected
the same. To cap it all, the function of the
court is to advance the cause of justice. In
my view, the court should not act with
rigidity in such matter unless it is of the
conclusion on valid reason and grounds
that non-appearance was with a specific
purpose to a design i.e. it was designed to
protract the litigation. In the facts and
circumstances of the present case, absence
of counsel on a particular date unless it
was deliberate or with the avowed object
of protracting expeditious disposal of the
matter should not be treated as default on
the part of the litigant himself.

2 AIR 1927 PC 242
3 AIR 1975 SC 1843

5. In the above perspective, the writ
petition is allowed and the impugned
orders are quashed. In consequence, the
petitioner shall be at liberty to lead
evidence at a very early date.

6. At this stage, the learned Counsel
for the petitioner urged that the suit itself
is very old and it should be ordered to be
decided
expeditiously.
The
learned
counsel has given undertaking that the
petitioner would fully cooperate with the
court below in expeditious disposal of the
suit. Considering that the suit is very old
and the interest of justice of both the
parties would be best attained if the suit is
ordered to be disposed of expeditiously, it
is directed that the trial court shall
endeavour to decide the suit expeditiously
preferable within a period not exceeding
one year. It may however be prescribed
that both the parties shall extend full
cooperation
and
would
not
seek
unnecessary adjournment.
Petition Allowed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2004

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 38029 of 2002

Raj Kumar Gupta

...Petitioner
Versus
Chief of the Army Staff Army Head
Quarter and others
 ...Respondents

Counsel for the Petitioner:
Sri H.P. Mishra

Counsel for the Respondents:
Sri B.N. Singh, S.S.C.
Smt. Aradhana Chauhan