# Smt. Uma Mukerji v. The Board of Revenue, Allahabad

- **Citation:** (2020) 12 ILRA 591
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-03-25
- **Case number:** Misc. Single No. 6016 of 2008
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-uma-mukerji-v-the-board-of-revenue-allahabad-45470
- **Pages:** 6

## Headnote

C.S.C., G.S. Nigam, Mohammad Aslam
Khan, Mohd. Adil Khan.

A. Practice & Procedure -Review- admissibility
of engaging fresh counsel to argue a review
petition - not open for a fresh counsel engaged
for arguing the review petition to say that
certain arguments were advanced at the time
of initial hearing of the writ petitions but same
were not considered by the Court -
Constitution of India - Article 22 - has no
concern with the right of a fresh counsel to be
engaged and to argue a review petition
relating to certain property dispute between
the parties - Article 22 relates to life and
liberty, arrest and detention being carried out
without the grounds of such arrest being
communicated to the detenue (Para 21)

B. Practice & Procedure - Written Submission
filed after judgment reserved - Court is only
bound to consider those arguments that are
raised and pressed during the hearing in open
Court - practice of introducing new grounds by
way of written submissions after arguments
are over and judgment is reserved not only
prejudice the opponents of such parties, but
amounts
to
taking
unfair
and
undue
advantage of the liberty granted by the Court
(Para 15,16)

Writ Petition dismissed. (E-5)

List of Cases cited :-

## Text

12 All. Smt. Uma Mukerji Vs. The Board of Revenue, Allahabad
591
family members of the wife was already
disbelieved by the Family Court at page-9
of the judgment and apart from this, the
allegations of adultery by both the parties
against each other was also disbelieved by
the court below but still passed the decree
of divorce without any cogent evidence on
record. The learned family court had also
granted divorce on the ground that the wife
had deserted her husband and used to live
at her parental house, but failed to consider
the evidence adduced by the wife regarding
harassment for dowry and her willingness
to live with the husband.

18. From the evidence available on
record, we find that the appellant-wife is
not living separately on account of her own
free-will. The defendant appellant was
always ready and is still ready to live with
the plaintiff respondent but he refused to
live
with
defendant-appellant.
The
defendant appellant has herself not deserted
plaintiff-respondent.
The
plaintiff
respondent has failed to establish that the
defendant-appellant had committed cruelty
or deserted him without there being any
sufficient reasons.

19. In view of aforesaid discussion, the
appeal is liable to be allowed. The appeal is,
accordingly, allowed and judgment and decree
dated 25.3.2017, passed by Principal Judge,
Family Court, Hapur is hereby set aide and
divorce suit filed by plaintiff respondent stands
dismissed.

17. However, there shall be no order
as to costs.
----------
(2020)12ILR A591
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.11.2020

BEFORE
THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 6016 of 2008

Smt. Uma Mukerji ...Petitioner
Versus
The Board of Revenue, Allahabad
 ...Respondent

Counsel for the Petitioner:
D.C. Mukerji, Devendra Mohan Shukla, Dhruv
Mathur, K.K. Sharma, Lalta Prasad Misra,
Rajeiu Kumar Tripathi, Sharvan Kumar Shukla.

Counsel for the Respondents:
C.S.C., G.S. Nigam, Mohammad Aslam
Khan, Mohd. Adil Khan.

A. Practice & Procedure -Review- admissibility
of engaging fresh counsel to argue a review
petition - not open for a fresh counsel engaged
for arguing the review petition to say that
certain arguments were advanced at the time
of initial hearing of the writ petitions but same
were not considered by the Court -
Constitution of India - Article 22 - has no
concern with the right of a fresh counsel to be
engaged and to argue a review petition
relating to certain property dispute between
the parties - Article 22 relates to life and
liberty, arrest and detention being carried out
without the grounds of such arrest being
communicated to the detenue (Para 21)

B. Practice & Procedure - Written Submission
filed after judgment reserved - Court is only
bound to consider those arguments that are
raised and pressed during the hearing in open
Court - practice of introducing new grounds by
way of written submissions after arguments
are over and judgment is reserved not only
prejudice the opponents of such parties, but
amounts
to
taking
unfair
and
undue
advantage of the liberty granted by the Court
(Para 15,16)

Writ Petition dismissed. (E-5)

List of Cases cited :-

1. M. Poornachandran Vs St. of T.N. (1996) 6 SCC 755
592 INDIAN LAW REPORTS ALLAHABAD SERIES
2. T.N. Electricity Board & anr. Vs N. Raju
Reddiar & anr. (1997) 9 SCC 736

3. Raj. Agricultural University Vs Ram (1999) 4
SCC 196

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. Heard.

2. Dr. L.P. Misra, Advocate, assisted
by Sri Devendra Mohan Shukla, and Sri
Rajeiu Kumar Tripathi, learned counsel for
the review petitioners, has pointed out that
this Court in its order dated 03.11.2020 has
wrongly referred to the arguments raised by
him in its paragraph-4. He says that it has
inadvertently been stated in the order dated
03.11.2020 that Sri Rajieu Kumar Tripathi,
Advocate, had also argued the matter and
was present in the Court, however now he
has been instructed to say that Sri Rajeiu
Kumar Tripathi, Advocate, was not present
during the arguments of Writ Petition
No.6016 (M/S) of 2008 connected with
Writ Petition No.5292 (M/S) of 2010 and
only
Sri
Devendra
Mohan
Shukla,
Advocate, was present along with Sri
Dhruv Mathur, Advocate, who have argued
both the writ petitions.

3. Dr. L.P. Misra, Advocate, has tried
to distinguish the judgements cited by the
learned counsel for the private respondents
on
earlier
occasion
regarding
the
admissibility of engaging a fresh counsel to
argue a review petition. He says that in the
judgment rendered by Hon'ble Supreme
Court in M. Poornachandran Vs. State of
Tamil Nadu, (1996) 6 SCC 755, the civil
appeal was filed by one Sudarsh Menon,
the Advocate-on-Record and it was heard
and decided on merits. Later on, a review
petition
was
filed
by
one
Prabir
Chowdhury, who was neither the arguing
counsel nor he was present at the time of
arguments. It was in this context, the
Hon'ble Supreme Court has observed that it
is not known on what basis the new counsel
had written the grounds in the Review
Petition, as if it is hearing of an Appeal
against the court's own order and had taken
grounds which were beyond the scope of
the review. The Hon'ble Supreme Court had
therefore observed that it would not be in
the interest of the profession to permit such
practice. Moreover, the new counsel had
not taken the No Objection Certificate from
the Advocate-on-Record in the Appeal
inspite of the fact that Registry had pointed
out this fact to him. Filing of the No
Objection Certificate would be the basis for
him to come on record and an AdvocateOn-Record is answerable to the Court. The
failure to obtain No Objection Certificate
from the erstwhile counsel had dis-entitled
the new counsel to file the review petition.
The
review
petition
was
therefore
dismissed by Hon'ble Supreme Court with
the observations that it was an attempt to
re-argue the matter by the new counsel.

4. Dr. L.P. Misra, Advocate, says that
the
judgment
in
M. Poornachandran
(supra), is inapplicable to the facts of this
particular case as Sri Devendra Mohan
Shukla, Advocate, who was the Advocateon-Record in the earlier round of litigation,
is the person who has drafted the review
petition, and as also the Advocate who is
assisting Dr. L.P. Misra, Advocate in his
argument in the review petition. Hence this
Court may ignore the judgment of Hon'ble
Supreme Court as it is distinguishable on
facts.

5. It has also been submitted by Dr.
L.P. Misra, Advocate, that the judgment
rendered by Hon'ble Supreme Court in
Tamil Nadu Electricity Board and another
Vs. N. Raju Reddiar and another, (1997) 9
12 All. Smt. Uma Mukerji Vs. The Board of Revenue, Allahabad
593
SCC 736, the other judgment on which the
counsel for the private respondent has
relied, is also inapplicable to the facts of
the present case. He says that in Tamil
Nadu Electricity Board (supra), the review
petition had been styled as 'application for
clarification', on the specious plea that the
order was not clear and unambiguous. The
counsel who had filed the said application
for clarification was not the Advocate-onRecord and had neither appeared nor was a
party in the main case. The Hon'ble
Supreme Court had also observed that the
change of counsel had been carried out
without obtaining consent of the earlier
Advocate-on-Record,
which
was
not
conducive to healthy practice of the Bar
which has the responsibility to maintain the
salutary tradition of profession. The Court
had referred to its earlier order passed in M.
Poornachandran (supra) and observed that
Advocate-on-Record being answerable to
the Court, only he should have been heard
or at least his No Objection Certificate
should have been taken before filing the
application for clarification. It has been
submitted
that
Sri
Devendra
Mohan
Shukla, Advocate, was the Advocate-onRecord in the earlier round of litigation and
he has also drafted the review petition and
is also instructing Dr. L.P. Misra, Advocate,
who is the arguing counsel, therefore, the
judgment
rendered
in
Tamil
Nadu
Electricity Board (supra) is distinguishable.

6. Dr. L.P. Misra, Advocate, has also
argued that under Article 22 of the
Constitution of India, a litigant is entitled
to protect his life and liberty by engaging
a counsel of his choice and it would be a
violation of Article 22 of the Constitution
of India, in case this Court does not
permit the litigant/ review petitioner to
engage any counsel of its choice to argue
on the review petition as the judgment
affects the life and liberty of the review
petitioner.

7. Sri Mohd. Arif Khan, learned
Senior Advocate, assisted by Mohd. Aslam
Khan, learned counsel for the private
respondent, has countered such argument
made by Dr. L.P. Misra, Advocate, to the
preliminary objection raised by him as
recorded in the order dated 03.11.2020
passed by this Court. He says that Dr. L.P.
Misra was not arguing the matter at the
time when the Court heard the parties in
detail and passed its judgment dated
30.07.2020. Sri Devendra Mohan Shukla,
Advocate, may have assisted Sri Dhruv
Mathur but the arguing counsel was Sri
Dhruv Mathur at the time of initial hearing
of the writ petitions and regarding their
consideration in the judgment.

8. Learned counsel has referred to the
strict language of Hon'ble Supreme Court
in the case of M. Poornachandran (supra),
which refers to change of counsel to file
and argue the review petition and says that
"it would be not in the interest of the
profession to permit such practice. More
so, when there was an attempt to re-argue
the matter by the new counsel."

9. Learned Senior Advocate has also
referred to the language of the judgment
rendered by Hon'ble Supreme Court in Tamil
Nadu Electricity Board (supra) to say that it is
a new practice which is unbecoming and not
worthy of, or conducive to the profession to
engage fresh counsel to argue a review petition
or clarification application as the earlier
Advocate-on-Record is answerable to the
Court
and
being
answerable
is
also
responsible.

10. Learned Senior Advocate has
referred to placitum 'b' of paragraph-1 of
594 INDIAN LAW REPORTS ALLAHABAD SERIES
the judgment in Tamil Nadu Electricity
Board (supra) to say that change in counsel
leads to fresh arguments being raised which
is only an attempt for hearing the matter
again on merits. He has referred to
paragraph-2 of the judgment also to say
that this practice of changing the advocates
and filing repeated review petitions should
be deprecated with a heavy hand for purity
of administration of law and salutary and
healthy practice of the Bar.

11. Sri Mohd. Arif Khan, learned
Senior Advocate, has also referred to
certain grounds raised in the review
petition to say that the review petitioner
attempts to argue afresh before this Court
by placing before this Court certain
arguments saying that they were advanced
at the time of initial hearing of the writ
petitions but were not considered by the
Court. It has been stated in the review
petition also that in the written submissions
certain grounds were taken by the writ
petitioners which have not been considered
while dictating the judgment by this Court.

12. Dr. L.P. Misra, Advocate, says
that such preliminary objection as raised by
Sri Mohd. Arif Khan, learned Senior
Advocate, must be confined only to the
permissibility
of
hearing
of
another
advocate engaged for arguments in the
review
petition,
and
learned
senior
advocate of the respondents should desist
from pointing out paragraphs/ grounds in
the review petition as it would amount to
arguing the review petition also on merits.

13. This Court finds from the
arguments raised by both the counsel that
on one hand Sri Mohd. Arif Khan, learned
senior advocate, seeks to rely upon the
judgments rendered by Hon'ble Supreme
Court as cited hereinabove, and on the
other hand Dr. L.P. Misra, Advocate, seeks
to distinguish the judgments only on the
ground that in those cases the Advocate-onRecord has been changed while filing the
review petition without obtaining the No
Objection Certificate from the earlier
counsel.

14. This Court does not find any
merits in the arguments raised by Dr. L.P.
Misra, Advocate, that the Advocate-onRecord in this case is the same i.e.
Devendra Mohan Shukla. It is the case of
Sri Devendra Mohan Shukla, Advocate that
Sri Dhruv Mathur, Advocate, is now
unavailable for arguments for reasons best
known to him.

15. This Court is of the considered
opinion that the arguments should be made
by the counsel before this Court accepting
full responsibility regarding correctness
and also for the consequences that may
arise therefrom. It is not good practice to
first argue the matter and when the
judgment is reserved with liberty to file
written arguments, pointing out in the
review petition that written arguments have
not been considered in their entirety. This
Court is only bound to consider those
arguments that are raised and pressed
during the hearing in open Court, as has
been held by Hon'ble Supreme Court in
Rajasthan Agricultural University Vs.
Ram 1999 (4) SCC 196.

16. The practice of introducing new
grounds by way of written submissions
after arguments are over and judgment is
reserved not only prejudice the opponents
of such parties, but amounts to taking
unfair and undue advantage of the liberty
granted by the Court. Later on, if the Court
refuses to consider these new grounds, a
grievance is invariably made either in a
12 All. Smt. Uma Mukerji Vs. The Board of Revenue, Allahabad
595
review petition or otherwise, that the Court
has
omitted
certain
material
from
consideration and therefore the order is
erroneous.

17. It is not open for a fresh counsel
engaged for arguing the review petition to
say that the matter was argued in a
particular manner by the arguing counsel in
the writ petition and certain points were
raised by that arguing counsel while the
arguing counsel has not come forward to
point out the mistake of the Court or the
error apparent on the face of the record, in
the limited scope for review petition.

18. This Court would have permitted
Sri Devendra Mohan Shukla, Advocate, to
argue the matter as he was present at the
time when the writ petitions were heard and
judgment was reserved. It cannot permit
Dr. L.P. Misra, Advocate, to now come
forward and raise arguments regarding the
review petition saying that there is an error
apparent on the face of the record only
because certain arguments raised by Sri
Dhruv
Mathur,
Advocate,
were
not
considered by this Court at the time of
passing of the judgement. More so, when
Dr. L.P. Mishra, Advocate, claims that such
instructions have been given to him by Sri
Devendra Mohan Shukla, Advocate. It
would only amount of hearsay as Dr. L.P.
Misra was not present at the time of
arguments and he has been instructed by
Sri Devendra Mohan Shukla to say that Sri
Dhruv Mathur had argued the matter on
certain points which were not considered
by the Court while passing the judgment.

19. As regards the arguments made by
Dr. L.P. Misra, Advocate, regarding Article
22 of the Constitution of India and that it
would be a violation of Article 22 of the
Constitution if this Court does not permit a
litigant to engage a counsel of his choice; it
would be suffice to say that the language of
Article 22(1) of the Constitution of India is
very clear, which is quoted herein below:-

"22. Protection against arrest and
detention in certain cases.- (1) No person
who is arrested shall be detained in custody
without being informed, as soon as may be,
of the grounds for such arrest nor shall he
be denied the right to consult, and to be
defended by, a legal practitioner of his
choice."

20. Dr. L.P. Misra, Advocate, wants
this Court to ignore the first half of clause1 of Article 22 only to consider the second
half of clause-1 of Article 22, which says
that a person may not be denied " the right
to consult, and to be defended by, a legal
practitioner of his choice."

21. This Court cannot ignore the
context in which such an observation has
been made by the framers of the
Constitution. It relates to life and liberty,
arrest and detention being carried out
without the grounds of such arrest being
communicated to the detenue and it has no
concern at all with the right of a fresh
counsel to be engaged and to argue a
review petition relating to certain property
dispute between the parties.

22. Sri Devendra Mohan Shukla,
Advocate, at this stage has submitted that
he may be permitted to approach Sri Dhruv
Mathur, Advocate, for arguing this review
petition and in case of his inability to argue,
Sri Devendra Mohan Shukla, Advocate,
may be permitted to argue the review
petition.

23. The permission as prayed for is
granted.
596 INDIAN LAW REPORTS ALLAHABAD SERIES

24. List this case in the first week of
December, 2020.
----------
(2020)12ILR A596
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2020

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SHAMIM AHMED, J.

P.I.L. No. 746 of 2020

Rubi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ali Qambar Zaidi.

Counsel for the Respondents:
C.S.C.

A. Constitution of India,1950-Article 226-
Public Interest Litigation-maintainability ofpetitioner
challenge
the
compassionate
appointment of the respondent/Stenographer
at Zila Panchayat, Muzaffarnagar-Apex Court
Propounded in a series of Cases that PIL is not
maintainable in service matters. (Para 1 to 24)

B. Whenever any public interest is invoked,
the court must examine the case to ensure
that there is in fact, genuine public interest is
involved. The court must maintain strict
vigilance to ensure that there is no abuse of
the process of court. (Para 22)

The Petition is dismissed. (E-6)

List of Cases cited:-

1. Dr. Duryodhan Sahu & ors. Vs Jitendra Kumar
Mishra & ors., (1998) 7 SCC 273,

2. Jasbhai Motibhai Desai Vs Roshan Kumar Haji
Bashir Ahmed & ors, (1976) 1 SCC 671,

3. Ashok Kumar Pandey Vs St. of W.B., (2004) 3 SCC 349
4. Janata Dal Case (1992) 4 SCC 305 :(1993 )
SCC (Cri) 36

5. Dr. B Singh Vs UOI,(2004) 3 SCC 363,

6. Gurpal Singh Vs St. of Punj. , JT (2005) 5 SC 389,

7. Indian Consumers Welfare Council Vs UOI &
anr. (2005) 3 L. W. 522,

8. N. Veerasamy Vs UOI, (2005) 2 MLJ 564,

9. Neetu Vs St. of Punj., (2007) 10 SCC 614,

10. Seema Dharmdhere, Secy, Mah. Public
Service Commission Vs St. of Mah., (2008) 2
SCC 290,

11. Hari Bansh Lal Vs Sahodar Prasad Mahto &
ors., (2010) 9 SCC 655

12. Girjesh Shrivastava & Ors Vs St. of M.P. &
ors., (2010) 10 SCC 707

13. B. Srinivasa Reddy V. Karnataka Urban
Water Supply & Drainage Board Employees
Association & ors. (2006) 11 SCC 731 (II)

14. Bholanath Mukherjee & ors. Vs Ramakrishna
Mission Vivekananda Centenary College &
ors.,(2011) 5 SCC 464

15. Ayaaubkhan Noorkhan Pathan Vs St. of Mah.
& ors., (2013) 4 SCC 465

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Ali Qambar Zaidi,
learned counsel for the petitioner, learned
Standing
Counsel
appearing
for
the
respondents and perused the material
placed on record.

2. This Public Interest Litigation
(Writ Petition) under Article 226 of the
Constituton of India has been filed by the
petitioner with the following prayers;

"I. Issue a writ order or direction in the
nature of QUO WARRANTO thereby