# Smt. Rajani v. Vipul Mittal & Ors

- **Citation:** (2022) 6 ILRA 397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-19
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajani-v-vipul-mittal-ors-48776
- **Pages:** 5

## Headnote

(A) Civil Law - Constitution of India,
Article 227 - Civil Procedure Code, 1908 -
Section - 151, Order - 17 Rule - 1, Order -
9 Rule - 6: - Application for Recall of
orders without Affidavit in support of
delay Condonation - Rejected - Revision
Dismissed - defendants are given enough
opportunity - impugned orders are proper.
(Para 5, 6)

(B) Civil Law - Society Registration Act,
1860: - Bar Associations are registered
societies
-
established
for
positive
contribution in welfare of its learned
members - they cannot obstruct or
interfere in the Sovereign function of the
Court. (Para 7, 9)
Writ Petition - dismissed. (E-11)

List of Cases cited: -

## Text

6 All. Smt. Rajani Vs. Vipul Mittal & Ors.
397
conclude the same as early as possible. All
the parties to the case are directed to cooperate in expeditious disposal of the case.
In case the petitioners do not co-operate in
expeditious disposal of the matter and they
seek any unnecessary adjournments, it will
be open to the DRT to pass suitable orders
in accordance with the law taking into
consideration all the relevant facts and
circumstances.
----------
(2022)06ILR A397
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matters U/A 227 No. 3265 of 2022 (Civil)

Smt. Rajani ...Petitioner
Versus
Vipul Mittal & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Kumar Aditya, Sri Radhey Shyam
Dwivedi

Counsel for the Respondents:
Ms. Shreya Gupta, Sri Ravi Anand Agarwal

(A) Civil Law - Constitution of India,
Article 227 - Civil Procedure Code, 1908 -
Section - 151, Order - 17 Rule - 1, Order -
9 Rule - 6: - Application for Recall of
orders without Affidavit in support of
delay Condonation - Rejected - Revision
Dismissed - defendants are given enough
opportunity - impugned orders are proper.
(Para 5, 6)

(B) Civil Law - Society Registration Act,
1860: - Bar Associations are registered
societies
-
established
for
positive
contribution in welfare of its learned
members - they cannot obstruct or
interfere in the Sovereign function of the
Court. (Para 7, 9)
Writ Petition - dismissed. (E-11)

List of Cases cited: -

1. Ex-Capt. Harish Uppal v. U.O.I. & anr., (2003)
2 SCC 45

2. Common Cause, a registered society & ors. v.
U.O.I. & ors., (2006) 9 SCC 295

3. Krishnakant Tamrakar v. St. of M.P., (2018) 17
SCC 27

4. District Bar Association, Dehradun Vs Ishwar
Shandilya & ors., (2020) 17 SCC 672

(Delivered by Hon'ble J.J. Munir, J.)

This petition is directed against the
order dated 13.04.2022 passed by the
Additional District Judge, Court No.
5/Special Judge (U.P. Gangsters and Antisocial Activities (Prevention) Act, 1986)
Muzaffarnagar, dismissing Civil Revision
No. 18 of 2022 and affirming an order
dated 07.03.2022 passed by the Civil Judge
(Senior
Division)
Fast
Track
Court,
Muzaffarnagar in Original Suit No. 372 of
2013, rejecting the petitioner's application
85C
seeking
to
recall
orders
dated
26.10.2021 and 14.12.2021.

2. By the order dated 26.10.2021, an
application
for
adjournment
by
the
defendant has been rejected and his
opportunity to cross-examine P.W.1 closed.
The suit was directed to come up for
arguments. By the order dated 14.12.2021,
in the absence of the defendant, the suit
was directed to come up for arguments exparte on 03.01.2022. A perusal of the
record shows that Original Suit No. 372 of
2013 was filed by Vipul Mittal against
Yogendra Kumar Garg before the Court of
the
Civil
Judge
(Senior
Division),
Muzaffarnagar for partition of his half
share in House No. 212/1, situate at
398 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohalla Civil Lines, West, Muzaffarnagar,
detailed in Schedule A to the plaint. The
plaintiff sought a decree in terms that after
the determination of his share, the suit
property be partitioned by metes and
bounds and separate possession delivered
to him. A decree for permanent injunction
was also sought to the effect that the
defendants, prior to the partition being
effected, may not mortgage the suit
property or alter the nature and character of
the house in dispute. The original defendant
to the suit, Yogendra Kumar Garg, appears
to have passed away pending suit and was
substituted
by
his
heirs
and
L.Rs.,
numbering five, and arrayed as defendant
nos. 1/1 to 1/5 to the suit. The suit is one of
the year 2013. The suit has proceeded to
trial and it appears that the plaintiff had
filed
his
evidence
on
affidavit
and
16.10.2021 was the date scheduled for
cross-examination of P.W.1. On the said
date, the Counsel for the defendant made
an application for adjournment, which was
opposed by the plaintiff. The application
for
adjournment
was
rejected
and
opportunity to cross-examine P.W.1 was
closed. The suit was directed to come up
for
arguments
on
09.11.2021.
On
09.11.2021, 17.11.2021 and 01.12.2021,
the suit was adjourned eventlessly. It was
adjourned on 09.11.2021 because the
Presiding Officer was on leave, but the
parties were also absent. On 17.11.2021, it
was
adjourned
because
the
learned
Members of the Bar had abstained from
judicial work. Again, on 01.12.2021, the
case was adjourned because the Presiding
Officer was on leave. On 01.12.2021, it
was
adjourned
to
14.12.2021.
On
14.12.2021, when the suit came up for
arguments, the Counsel for the plaintiff was
present, but no one appeared on behalf of
the
defendant.
It
was
in
those
circumstances that the Trial Court directed
that the suit may come up for arguments
ex-parte on 03.01.2022. In the said order, it
was recorded that the Bar Association has
proposed no work from 17.12.2021, due to
elections of the Bar.

3.

By
the
application
dated
04.01.2022, the defendant has sought recall
of the order dated 14.12.2021 that directs
the suit to come up for address of
arguments ex-parte. This application bears
Paper No. 85C. By the other application
dated 07.03.2022, the defendant has sought
recall of the order dated 26.10.2021 that
has closed the defendant's opportunity to
cross-examine P.W.1 and once again asked
for recall of the order dated 14.12.2021,
setting down the suit for address of
arguments ex-parte. It is these applications
that the Trial Judge has rejected vide his
order dated 07.03.2022.

4. Heard Mr. Anil Kumar Aditya,
learned Counsel for the petitioner in
support of the motion to admit this petition
to hearing and Ms. Shreya Gupta, learned
Counsel
appearing
for
the
plaintiffrespondents at length. The records have
been carefully perused.

5. The impugned order passed by the
Trial Judge shows that he has rejected the
Application 85C seeking recall of the order
dated 14.12.2021 alone, that is to say, the
application dated 04.01.2022 on the ground
that there is no order dated 14.12.2021.
That remark or reason to reject by the Trial
Court is not borne out from the record.
There
is
definitely
an
order
dated
14.12.2021 passed by the Trial Court,
directing the suit to come up for address of
arguments ex-parte. So far as the other
application is concerned, the Trial Court
has dismissed it on the ground that the
order dated 14.12.2021 is non-existent and
6 All. Smt. Rajani Vs. Vipul Mittal & Ors.
399
the order dated 26.10.2021 ought not to be
recalled, because the defendant is merely
trying to delay the trial. It has also been
remarked that the Application 85C (the
application dated 07.03.2022 that seeks
recall of both orders dated 26.10.2021 and
14.12.2021) is not supported by an
affidavit. It is for the reason that
Application 89C has been rejected. The
Revisional Court has upheld the orders
impugned on the ground that both the
applications 85C and 89C have been made
much
beyond
limitation,
without
an
application or prayer for condonation of
delay; but, this is one facet of the reasoning
that the Revisional Court has adopted. The
Revisional Court has looked wholesomely
into the record to arrive at a conclusion that
the defendant is attempting to delay trial of
the suit, which has been expedited under
orders of this Court dated 14.09.2018
passed in some supervisory proceedings. It
appears that there is some order of this
Court, directing the suit to be decided
within two years and that schedule was
violated because of the dilatory tactics
adopted by the defendant. It is bearing all
these facts in mind that the Revisional
Court has declined to interfere with the
orders made by the learned Trial Judge.

6. This Court has carefully looked
into the order-sheet. It must be remarked
that indeed, there have been determined
efforts to delay trial of the suit. On
08.01.2021, the plaintiff's evidence on
affidavit was accepted and the suit was
scheduled for cross-examination of P.W.on
28.01.2021.
From
28.01.2021
to
26.10.2021, 18 dates were fixed prior to
26.10.2021, but for one reason or the other,
the defendant did not cross examine P.W.1.
The Trial Judge in between 28.01.2021 and
26.10.2021 has taken note of the orders of
this Court in the order recorded on
02.08.2021, saying that the High Court has
issued directions for concluding the trial
within two years, and further, that the suit
has been assigned to him by the District
Judge. It is not that the order dated
26.10.2021,
closing
the
defendant's
opportunity has been passed surreptitiously
or suddenly. The defendant has been given
enough opportunity by the orders passed by
the Trial Court on earlier dates, and also,
by all those ominous resolutions of the Bar,
directing its members to abstain from
judicial work. It must be remarked that
Resolutions of the Bar, asking its Members
to
abstain
from
judicial
work,
are
absolutely unlawful, in view of the
directions of the Supreme Court in ExCapt. Harish Uppal v. Union of India
and
another1,
Common
Cause,
a
registered society and others v. Union of
India
and
others2,
Krishnakant
Tamrakar v. State of Madhya Pradesh,
(2018) 17 SCC 273 and District Bar
Association,
Dehradun
through
its
Secretary v. Ishwar Shandilya and
others4. Such resolutions being per se
illegal, no litigant can derive any advantage
out of these. The orders passed on
01.09.2021,
13.09.2021,
14.09.2021,
08.10.2021 and 26.10.2021 must be taken
particular note of, as these immediately
preceded the order dated 26.10.2021 passed
by the learned Trial Judge. These orders are
extracted below :

01.09.2021

Called out.

Pf. did not turn up.

Counsel on behalf of the df.
Present and filed adjournment 82D stating
that O.S. 982/10 is a connected case and is
pending in the Court of Civil Judge S.D. df.
are trying to get the connected case
transferred
to
one
Court.
Hence
adjournment is moved.
400 INDIAN LAW REPORTS ALLAHABAD SERIES

Application allowed in interest of
justice.

Put up on 13-09-2021.

13-09-2021

Called out.

None present.

Proposal of Bar to abstain from
judicial work.

Hon'ble H.C. has pass direction to
dispose off the case within 2 years. Even on
repeated requests to the counsels, no sides
are appearing.

In the interest of justice, last
opportunity is granted to parties. Put up on
24-09-2021.

24.09.2021

पुक र कर यी। पक्षक र अिुपखस्थत।
अवध०िण क यय से विरत है। पत्र ििी म ० उच्च
न्य य िय द्व र वदश विदेशीत है। पक्षक रोां को
अांवतम अिसर वदय ज त है ि द ि स्ते F.O.
वदि ांक 08.10.2021 को पेश हो।

ह० अ०/-

08.10.2021

पुक र कर यी ियी। स्थिि प्रवति दी
83घ स्वीकृत। ि द ि स्ते F.O. वदि ांक
20.10.2021 को पेश हो।

ह० अ०/-

20.10.2021

पुक र
कर यी।
ि दी
उपखस्थत।
अवध०िण क यय से विरत है। ि द ि स्ते F.O. /
वजरह वदि ांक 26.10.2021 को पेश हो।

ह० अ०/-

7. This Court takes particular notice
of the order dated 13.09.2021, where the
learned Trial Judge has observed that the
High Court has directed the suit to be
decided within two years, but despite
repeated requests to the learned Counsel,
no one is appearing. This was so because
the Bar had abstained from judicial work.
This conduct of the Bar is not only
reprehensible, but also downright illegal.
The Bar Association is, after all, a
registered society and cannot hold up the
functioning of a Sovereign Court by their
resolutions. Whatever they do, they do it at
the peril of the litigants whose interest their
Members represent. If the learned Counsel
refuse to appear and so do the parties, the
Court is supposed to pass orders in
accordance with the Code of Civil
Procedure, 1908 that provides for orders to
be made when parties, both or one, are
absent. The impugned order passed on
26.10.2021, which follows the order dated
10.10.2021 recorded hereinabove, reads :

26.10.2021

Called out.

Pf. along with Counsel present.

Counsel
of
Df.
filed
an
adjournment
84D
which
is
strongly
opposed by pf.

On perusal it is observed that df.
is continuously delaying the case by not
turning up. In the light of conduct of df.,
opportunity to cross examine PW1 is
closed. Adjournment rejected.

Put
up
on
09/11/2021
for
argument.
6 All. Sarafat & Anr. Vs. State of U.P.
401

8. The other order of which recall was
sought is the one dated 14.12.2021. It reads
:

14.12.2021

Called out.

Counsel on behalf of pf. present.

Df. did not turn up.

Put up on 03-01-2022 for exparte arguments, as BAR proposed no work
from 17-12-2021 due to elections of BAR.

9. Again on 14.12.2021, the Members
of the Bar abstained from judicial work,
because Bar Elections were going on. It is
beyond imagination that the work of a Court
would be brought to a grinding halt, because
the elections of a registered society are to be
held. No doubt, learned Members of the Bar
are superior officers of the Court, but the Bar
Association is no more than a registered
society established for the welfare of the
learned Members of the Bar and to positively
contribute to the functioning of its individual
Members. The Bar Association is not
established to obstruct functioning of the
Court and interfere with the discharge of its
sovereign functions. The Trial Court was,
therefore, absolutely right when it made the
order dated 14.12.2021, directing the suit to
come up for address of arguments ex-parte.

10. It must be noted that on 14.12.2021,
learned Counsel for the plaintiff was present.
Had the learned Counsel for the plaintiff not
been present on 14.12.2021, the Trial Court
would have dismissed the suit in default also.
But, it was the defendant's Counsel alone
who was absent and not the plaintiff. The
order dated 14.12.2021, like the order dated
26.10.2021, is unexceptionable. It must be
noted that on 26.10.2021 also, the plaintiff,
along with his Counsel, was present. The
Revisional Court has upheld the order on the
ground of limitation, besides taking the
conduct of the defendant into account, though
not eloquently said in the order impugned
passed by the learned Additional District
Judge.

11. For the added reasons mentioned,
this Court concurs in the conclusion reached
by the two Courts below unanimously.

12. In the result, this petition fails and
stands dismissed.

13. There shall, however, be no order as
to costs.

14. The Registrar General is directed to
circulate this order to all the learned District
Judges, the Presiding Officers of Land
Acquisition, Rehabilitation and Resettlement
Tribunals, the Principal Judges of Family
Courts, the Presiding Officers of Motor
Accident Claim Tribunals and the Chairman,
Board of Revenue.
----------
(2022)06ILR A401
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.06.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 61 of 2010
connected with
Criminal Appeal No.120 of 2010

Sarafat & Anr. ...Appellant
Versus
State of U.P. ...Respondent