# Smt. Rajni Chauhan & another Revisionist v. Smt. Saroj Singh

- **Citation:** (2007) 1 ILRA 185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-07
- **Case number:** Civil Revision No. 76 of 2006
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajni-chauhan-another-revisionist-v-smt-saroj-singh-40819
- **Pages:** 3

## Headnote

Code of Civil Procedure-Order 40 rule 5Review-scope thereof explained-striking
out
defence-review
on
the
ground
counsel not advised-held-can not be
ground for review-unless discovery of
new facts or the error apparent on the
fact of record.

## Text

1 All] Smt. Rajni Chauhan and another V. Smt. Saroj Singh
185
as it gives an opportunity to the Airman,
whenever he thinks that he has been
wronged, to approach the authority.
Section 26 is not only comprehensive but
it also obligates the authority concerned
of making investigation for giving full
redress to the complainant. In the present
case order of discharge has been passed
against petitioner and pursuant to the
same discharge certificate has been
issued. The claim of petitioner is that he
has been wronged by Air officer Incharge
Personnel, who is subordinate to the Chief
of the Air Staff. Once petitioner submits
that he has been wronged by an officer of
the
level
of
Air
Officer
Incharge
Personnel, then petitioner has remedy in
terms of Sub-Section (2) of Section 26 of
the Act to complain to the Chief of the
Air Staff, and in the event of receipt of
any such complaint Chief of the Air Staff
will make investigation for giving full
redress to the petitioner in terms of subsection (3) of Section 26, and if even
thereafter, petitioner is aggrieved then
there is further remedy of revision before
Central Government in terms of subSection (5) of Section 26. Consequently,
equally efficacious remedy is there.

8. It has been next contended by
learned counsel for the petitioner that in
the present case order has been passed by
Air Head Quarter, New Delhi, and as such
it should be presumed that the order has
been passed by the Chief of the Air Staff,
as such relegation of petitioner to the
Chief of Air Staff would be redundant
exercise. This is clearly misconception on
the part of petitioner, inasmuch as in the
present case order has been passed by Air
Officer Incharge Personnel posted at Air
Head Quarter, New Delhi, and he cannot
be equated with the Chief of the Air Staff,
who holds a unique position under
Section 4 (xiv) of the Air Force Act,
1950.

9. Consequently, petitioner has got
equally efficacious remedy under Section
26 of the said Act, as such present writ
petition is dismissed on the ground of
alternative remedy.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.11.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Revision No. 76 of 2006

Smt. Rajni Chauhan & another ...Revisionist
Versus
Smt. Saroj Singh

 ...Respondent

Counsel for the Revisionist:
Sri Prabhat Kumar Srivastava

Counsel for the Respondent:

Code of Civil Procedure-Order 40 rule 5Review-scope thereof explained-striking
out
defence-review
on
the
ground
counsel not advised-held-can not be
ground for review-unless discovery of
new facts or the error apparent on the
fact of record.

(Delivered by Hon'ble Umeshwar Pandey, .J.)

1. Heard learned counsel for the
revisionist.

This revision challenges the order
dated 17.10.2006 passed by the court
below dismissing the review petition of
the revisionist.

2. A suit for eviction of the
revisionist was filed by the opposite-party
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
landlord before the Judge Small Causes
Court in which payment of rent till
01.12.2005
was
admitted
by
the
applicants. The rent/damages remained
due after that date which has admittedly
not been deposited as per the requirement
under
order
XV
Rule
5
C.P.C.
Accordingly, looking to the facts and
circumstances of the case the court below
struck off the applicant's defence filed in
the case vide order dated 17.11.2005.
Thereafter this review petition has been
moved stating that since there was no
fault on the part of the revisionist-tenant,
the defence was not liable for being struck
off.
It
is
further
stated
that
the
requirement of the deposit under Order 15
Rule 5 C.P.C. was not made clear to the
tenants by their counsel and because of
this ignorance the deposit could not be
made. Finding this ground as non
sustainable for a review petition the court
below has held that the order as such
could
not
be
reviewed
under
circumstances and the petition has been
dismissed by the impugned order.

3. The learned counsel appearing for
the revisionist has contended that since
there is no deliberate default committed
by the tenants and the deposit could not
be made because of the counsel's incorrect
advice, there is every cogent ground for
the court to have reviewed its earlier order
dated 17.11.2005. The matter actually
involves the future of small children who
were continuing their studies in the
educational institution.

4. As regards the scope of a review
petition the court can interfere into a
judgment and order passed by it only
when it is found from discovery of a new
and important matter or evidence which,
after exercise of due diligence, was not
available at the time when the order was
passed or on account of some mistake or
error apparent on the face of the record.
The court would not be obliged to review
any order or decree on the ground as
taken by the revisionist in the present
case. The simple ground which has been
taken by the petitioners and as submitted
by them also for grant of the, review is
that they could not make the deposit as
required under Order 15 Rule 5 C.P.C.
because of the fact that the counsel did
not advice them for the same. This is no
ground which can be said to be coming
within the ambit of the grounds as
enumerated under Order XLVII Rule 1 (c)
of the Code of Civil Procedure. There is
absolutely no mistake or error apparent on
the face of the record nor there is any
discovery of new matter or evidence
which can impel the court to reverse its
decision given earlier. Therefore, since
the aforesaid ground does not cover the
scope of review as enumerated in the
aforesaid order XLVII, the court below
has rejected the review petition.

5. I do not find any infirmity· in the
order impugned as to call for any
interference against it in this review
petition.

The petition having no force and is
hereby dismissed.
---------
1 All] Rajesh Kumar V. State of U.P. and others
187
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 4997 of 2003

Rajesh Kumar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vashistha Tiwari

Counsel for the Respondents:
Sri Sanjay Goswami
S.C.

U.P. Recruitment of Dependants of Govt.
Servants (Dying in Harness) Rules 1974Rule-5-Compassionate
appointmentclaim denied on the ground at the time
of death-employee was not discharging
his
duty-held-only
requirementgovernment. servant must be in serviceorder
of
rejection
passed
under
misconception-total non application of
mind-order quashed.

Held: Para 6

Thus a Government servant, if he is in
service and die, is one who die in
harness and dependent members of
family
are
entitled
for
suitable
employment under Rule 5 of 1974 Rules.
The· aforesaid Rule no where require
that the death of the Government
servant must occur while discharging
duty in the course of employment. The
only requirement under 1974 Rules is
that the Government servant must be in
service. It is not disputed that the
petitioner's father when died in 1992,
was in service, therefore, apparently the
view taken by the Superintendent of
Police, Mainpuri for rejecting the claim of
the petitioner is, incorrect and in the
teeth of 1974 Rules. It appears that the
aforesaid authority has not at all cared
to look into 1974 Rules and has passed
the
impugned
order
under
some
misconception
showing
total
non
application of mind on his part. In a
matter
pertaining
to
compassionate
appointment, this kind of exercise on the
part of the competent authority shows
total apathy and cannot be appreciated.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Vashistha Tiwari,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
respondents.

2. The grievance of the petitioner is
that his father working as Constable in
Civil Police of Uttar Pradesh died in a
road accident on 17th June, 1992. The
petitioner
after
having
obtained
Intermediate Qualification sought for
compassionate appointment under the
U.P. Recruitment of Dependants of
Government Servants (Dying in Harness)
Rules, 1974 (hereinafter referred to as
1974 Rules) but vide impugned order
dated
19th
December,
2002
the
Superintendent of Police, Mainpuri has
rejected his claim only on the ground that
the
petitioner's
father
while
unauthorizedly traveling by a Matador,
met an accident, therefore his death
cannot be said to have occurred in the
course of employment and he is not
entitled
for
any
compassionate
appointment under 1974 Rules. He
submits that the ground on which the
petitioner's
claim
for
compassionate
appointment has been rejected is totally
non-est, illegal and contrary to the
provision of 1974 Rules.

3. The learned Standing Counsel,
however, submits that under 1974 Rules