# State v. Ram Charan and others. This

- **Citation:** (2009) 1 ILRA 204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-09
- **Case number:** Civil Misc. Writ Petition No.37954 of 1996
- **Bench:** Ashok Bhushan, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-v-ram-charan-and-others-this-41347
- **Pages:** 7

## Headnote

Code of Civil Procedure-Order 9 R. 13Restoration
of
appeal-application
remained pending for 13 years-delaying
tactice by appellant-No satisfactory
explanation for non appearance-first
appellate
court
recorded
so
many
reasons
for
not
allowing
first
application-can not be interfered either
under Article 226 or 227 of constitution.

Held: Para 14

The Appellate Court has given cogent
reasons for rejecting the application as
noted above. The appeal was pending for
hearing for last 13 years and was
adjourned
at
the
instance
of
the
appellant
for
4th
July,

## Text

204 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

argument is wholly irrelevant and has
been advanced without any basis.

8. Coming to the judgement relied
upon by the applicant, the said decision
does not apply at all on the fact of the
present case. What happened in the case
of Mohd. Shafi was that the trial judge, on
the basis of examination-in-chief only did
not thought it fit to summon the accused
by exercise of power under Section 319
Cr.P.C. Informant being aggrieved from
the aforesaid inaction on the part of the
trial judge approached the concerned
High
Court
challenging
the
non
summoning of the accused. The High
Court while allowing the prayer of the
informant set aside the order passed by
the trial judge and directed the trial judge
to summon the accused persons. The
accused was aggrieved by the order
passed by the High Court against him and
therefore, he had approached the Supreme
Court. The Apex Court set aside the order
of the High Court for the reasons that
under section 319 Cr.P.C. it is the
satisfaction of the Trial Judge to summon
any person as an accused. The High Court
cannot not substitute its satisfaction with
that of the trial judge. The Apex Court has
held that if the trial judge was not
satisfied only on the basis of examinationin-chief to summon the accused, no fault
can be find with the order of the trial
judge and therefore, the Apex Court set
aside the order of High Court. This fact is
clear from paragraph no. 12 and 13 of the
aforesaid judgment of Mohd. Shafi
(supra). That is not the situation here. The
trial judge was satisfied that the present
applicant can be tried along with already
trying accused persons and the evidence
led before it is sufficient to summon him
by exercising power under section 319
Cr.P.C. The said opinion of the trial judge
cannot be said to be capricious, illegal or
not sustainable in law.

9. In view of the above discussions,
I find no reason to set aside the impugned
order dated 11.2.08 passed by Additional
Sessions Judge in S.T. No. 1122 of 06
State Vs. Ram Charan and others. This
application is therefore devoid of merit
and is hereby dismissed.

10. After this order was passed,
learned
counsel
for
the
applicant
requested for a direction for disposal of
bail prayer of the applicant in the
aforesaid trial.

11. On the peculiar facts of the case,
I direct the trial judge to consider and
dispose of the bail prayer of the applicant
in the aforesaid trial on the same day on
which it is moved after hearing the public
prosecutor as complete materials against
the applicant is already available with the
trial judge.

12.

This
application
stands
dismissed with aforesaid direction.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.37954 of 1996

M/s Hindustan Aeronautics Ltd.

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

Counsel for the Petitioner:
Sri S.D. Singh
1 All] M/s Hindustan Aeronautics Ltd. V. State of U.P. and another

205
Counsel for the Respondents:
Sri Harish Chand Kohli (In Person)
Sri S.C. Tripathi
S.C.

Code of Civil Procedure-Order 9 R. 13Restoration
of
appeal-application
remained pending for 13 years-delaying
tactice by appellant-No satisfactory
explanation for non appearance-first
appellate
court
recorded
so
many
reasons
for
not
allowing
first
application-can not be interfered either
under Article 226 or 227 of constitution.

Held: Para 14

The Appellate Court has given cogent
reasons for rejecting the application as
noted above. The appeal was pending for
hearing for last 13 years and was
adjourned
at
the
instance
of
the
appellant
for
4th
July,
1996.
The
Appellate Court has found that no
satisfactory explanation was given for
non-appearance of the counsel on 4th
July, 1996.
Case law discussed:
(2000) 3 S.C.C. 54, AIR 1984 S.C. 1447, 2003
(6) SCC 675

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri S.D. Singh, learned
counsel for the petitioner and Sri Harish
Chand Kohli, who has appeared in person
on behalf of respondent No.2. Earlier the
case was adjourned on the request of the
learned counsel for the petitioner to get
the matter settled outside the Court.
However, when the case was taken up
today, the settlement between the parties
is not seen. In view of the aforesaid, we
have proceeded to decide the writ petition
on merit.

2. This writ petition has been filed
praying for quashing the order dated.
15.11.1996 (Annexure No.8 to the writ
petition)
by
which
order,
the
5th
Additional District Judge, Kanpur Nagar
has rejected the application of the
petitioner for restoring the FAFO which
was dismissed on July, 1996. The FAFO
was filed by the petitioner against the
order dated 14.4.1983 by which order the
arbitration award awarding a sum of
Rs.79000 to the respondent was made
Rule of the Court. When the FAFO was
called on several occasion, neither the
petitioner nor the petitioner's counsel
appeared hence the Court dismissed the
appeal. An application was filed for
restoration of the appeal along with the
affidavit of Sri A.P. Trivedi, Supervisor.
The objection was filed to the said
restoration application. The Court heard
the parties and has dismissed the
application. The Court did not believe the
cause shown by the petitioner for nonappearance on 4th July t 1996. It was
noticed by the Court that 4th July, 1996
was the date fixed on the request made by
the petitioner and the appeal which was
pending for 13 years was to be heard
finally on 4th July 1996. Neither the
petitioner appeared nor his counsel
appeared although respondent and his
counsel were present. The explanation
given by the petitioner was that there was
workers' agitation in the establishment
due to which, no one could come to the
Court and the file of the case was with the
Supervisor. The Court disbelieved the
case set up by the petitioner and has
observed that no Senior Officer has filed
any affidavit with regard to extent of the
workers' agitation and it has not even
stated that there has been any violence
resorted
by
the
workers
in
the
establishment. The Court also did not
believe that there was no facility of
telephone and the case file was not with
the counsel. The Court observed that in a
206 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

case where appeal was pending for last 13
years and adjourned for 4th July, 1996 on
the request of the petitioner, the file of the
case be not with the counsel, is not
believable. Against the order dismissing
the restoration application, this writ
petition was filed by the petitioner on 26th
November 1996 which remained pending
in this Court for another 13 years.

3. By an interim order passed on
16.12.1996, the respondent was restrained
from taking the money which has been
deposited in the Court in pursuance of the
award.

4. Learned counsel for the petitioner
challenging the order contended that the
Court below has committed error in
rejecting the restoration application. The
Court ought to have put some conditions
for restoration of the appeal. He submits
that sufficient cause was shown. In
support of his contention, the learned
counsel for the petitioner has placed
reliance on the judgement of the Supreme
Court (2000) 3 S.C.C. 54, G.P. Srivastava
Versus R.K. Raizada and others.

5.

We
have
considered
the
submissions and perused the record.

6. The Appellate Court vide
impugned judgement dated 15.11.1996
dismissed the application filed by the
petitioner refusing to recall the order
dated 4th July, 1996. The following are the
reasons which have been given in the
impugned
order
for
rejecting
the
application:

(1) The appeal which earlier fixed for 2nd
July,
1996
for
hearing,
was
adjourned at the instance of the
petitioner to 4th July, 1996 for
hearing.

(2) The appeal is 13 years old appeal and
serious efforts were required to be
taken by the appellant for hearing of
the appeal but on that date no one
appeared on behalf of the appellant.
The HAL is a reputed and a big
establishment but with regard to
labour unrest, no affidavit of any
Senior Executive Officer was filed
and affidavit of only a subordinate
employee has been filed who is not
expected to assess the nature and
seriousness of labour unrest.

(3) It is not acceptable that no employee
or officer could contact his counsel
whereas there is no mention that
workers resorted to rampage or
violence.

(4) It is not acceptable that telephone
services had become zero.

(5) The fact that file of the counsel went
with Sri A.P. Trivedi along with
other documents cannot be believed.
No satisfactory reasons have been
given as to why the counsel for the
appellant in such important and old
case could not appear on 4th July,
1996.

(6) The party who is interested in
delaying the disposal of a case absent
itself to get the case dismissed in
default and subsequently efforts are
made to get it restored by which
process he gets opportunity to delay
the matter and in the present case this
appears to be reason for nonappearance.
1 All] M/s Hindustan Aeronautics Ltd. V. State of U.P. and another

207
7. From the reasons as indicated in
the impugned order as noticed above, it is
clear that Court has considered the
explanation given by the petitionerappellant for non-appearance on 4th July,
1996 and the objection taken to the
application by the respondent. It is not
disputed that appeal was filed against an
order passed by the learned Civil Judge
by which order, award given by arbitrator
was made Rule of the Court. The dispute
between the parties arose out of an
arbitration proceeding. The petitioner and
respondents entered into a contract for
carrying out certain constructions. The
dispute arose between the parties with
regard to which arbitrator gave an award
on 24.3.1981. The award was submitted
to the Court for making it Rule of the
Court on which Suit No. 140 of 1980
(M/s Kohli Construction Ltd. Vs. H.A.L.)
was registered. The learned 1st Additional
Civil Judge vide his judgement and order
dated 14th April, 1983 made the award
granted by the arbitrator for Rs.79,000/-
plus interest the Rule of the Court against
which order, the appeal was filed by the
petitioner being FAFO No. 378 of 1983.
The appeal remained pending for long 13
years and was fixed for hearing on 2nd
July, 1996 but on the request made by the
appellant's counsel, the appeal was
adjourned for 4th July, 1996 for hearing on
which date when the case was called on
several occasion, neither the petitioner nor
his counsel appeared. The explanation
given by the petitioner for nonappearance
on 4th July 1996 was that due to workers'
unrest in the factory, the representative of
the Company could not contact the
counsel on 4th July, 1996, hence no one
appeared. It has been stated by the
petitioner himself in his application filed
for recall of the order that the counsel was
briefed on the evening of 3rd July, 1996
for hearing of the appeal. On 4th July
1996, when the case was called, counsel
did not appear and no satisfactory
explanation has been given in the affidavit
for non-appearance of the counsel. The
appeal which was an old appeal, pending
for last 13 years and on the last occasion
was adjourned at the instance of the
petitioner's counsel, it was expected that
the counsel would appear and argue the
matter. The learned Appellate Court has
rightly observed that in facts of the
present case, a serious endeavour was
required to made on behalf of the
petitioner towards hearing of the appeal
which was not done. The explanation that
file of the counsel was mixed up and was
with Official of the factory was rightly
not believed. The Appellate Court who
was to hear the appeal, was in best know
of the proceedings before it. With an
order having considered the explanation
submitted by the petitioner and not having
found it satisfactory enough to recall
order dated 4th July, 1996, the scope of
interference in writ jurisdiction is too
limited.

8. The judgement of Apex Court in
G.P. Srivastava's case (supra) relied by
the counsel for the petitioner was a case
where the Apex Court laid down that for
setting aside the ex-parte decree under
Order 9 Rule 13 C.P.C. the words "was
prevented by any sufficient cause from
appearing" must be liberally construed to
enable the Court to do complete justice
between the parties particularly when no
negligence or inaction is imputable to the
erring party. It is useful to quote
paragraph No.7 of the judgement which is
as follows:

"7. Under Order 9 Rule 13 CPC an
ex parte decree passed against a
208 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

defendant
can
be
set
aside
upon
satisfaction of the Court that either the
summons were not duly served upon the
defendant or he was prevented by any
"sufficient cause" from appearing when
the suit was called on for hearing. Unless
"sufficient cause" is shown for nonappearance of the defendant in the case
on the date of hearing, the court has no
power to set aside an ex parte decree. The
words" was prevented by any sufficient
cause from appearing" must be liberally
construed to enable the court to do
complete justice between the parties
particularly when no negligence or
inaction is imputable to the erring party.
Sufficient cause for the purpose of Order
9 Rule 13 has to be construed as an
elastic expression for which no hard and
fast guidelines can be prescribed. The
courts have a wide discretion in deciding
the sufficient cause keeping in view the
peculiar facts and circumstances of each
case."

9. There can be no dispute to the
above proposition as laid down by the
Apex Court. The Apex Court in the above
paragraph has clearly laid down that the
Court have a wide discretion in deciding
the sufficient cause keeping in view the
peculiar facts and circumstances of each
case. Thus, whether the sufficient cause is
made out in a particular case depends on
the facts and circumstances of that case.
Coming to the facts in the case before the
Apex Court in G.P Srivastava's case, the
ex parte decree was passed on 10.3.1983.
On the date fixed, the tenant could not
appear due to reason that he was
indisposed at a site which was 85 Kms.
away from Lucknow where the case was
fixed and on 10th March, 1983 which was
the date fixed in the case, the young
nephew of the counsel met with an
accident and expired which prevented the
counsel to appear in the Court on that
date. The facts of that case as noted in
para 5 of the judgement and reasons given
by Court in para 8 are as follows:

"5. On 10.3.1983 the case was called
on for hearing by the Court in the early
hours but as no one appeared on behalf of
the appellant, the same was again taken
up at 2 p.m. As none appeared at that
time also, the suit was decreed ex parte
on the basis of evidence produced in the
case. In his application under Order 9
Rule 13 of the Code of Civil Procedure,
praying for setting aside ex parte
judgement and decree, the appellant
submitted that he was posted as an
Assistant Engineer in the Irrigation
Department and on account of the
construction of the bridges over the
casual drains he had to remain at the site
in the interests of public. He became
indisposed in the evening of 8.3.1982 at
the site which was about 85 kilometers
away from Lucknow and could not move
or return back to Lucknow till 11.3.1983
which prevented him from appearing in
the
trial
court
on
10.3.1983.
Unfortunately, the young nephew of the
counsel of the appellant met with an
accident on 10.3.1983 and expired which
prevented him (the counsel) counsel also
to appear in the Court on that date.
8. In the instant case, it is not is
disputed that the nephew of the counsel of
the appellant had died in a road accident
on the date of hearing and that the
appellant himself was not at the station on
account of his employment and illness."

10. From the facts of the above case,
it is clear that the explanation given for
non-appearance of both the tenant and his
counsel were held to be sufficient by the
1 All] M/s Hindustan Aeronautics Ltd. V. State of U.P. and another

209
Revisional Court and the ex parte decree
was set aside. The High Court interfered
with the findings of fact recorded by the
Revisional Court which order was set
aside by the Supreme Court. In the above
case, the nonappearance of the counsel on
10th March, 1983 was due to death of
nephew of the counsel on the very same
day. The case of G.P. Srivastava is on its
own fact and does not help the appellant
in the present case.

11. In the present case, this Court is
to ex min the correctness of the impugned
judgement given by the 5th Additional
District Judge on the parameters which
have been laid down for exercise of
jurisdiction under Articles 226 and 227 of
the Constitution of India. The present is a
writ petition challenging the order of the
5th Additional District Judge, Kanpur
Nagar. The order of Additional District
Judge was well within the jurisdiction of
the Court and has been passed after
considering the affidavit filed by the
petitioner and other materials on the
records.

12. The Apex Court in AIR 1984
S.C. 1447, Jagdish Prasad Vs. Smt.
Angoori Devi, has considered the scope
of issuing a writ of certiorari by the High
Court in exercise of jurisdiction under
Article 226 of the Constitution. Following
was laid down in paragraph 3:

"3. In the case of Syed Yakoob v.
K.S. Radha Krishnan (1964) 5 SCR 64:
(AIR 1964 SC 477), a Constitution Bench
of this Court indicated the the scope of
interference in a certiorari proceeding by
saying that a writ of certiorari is issued
for correcting the errors of jurisdiction
committed by the courts or tribunals in
cases where they exceed their jurisdiction
or fail to exercise it or exercise it illegally
or improperly, i.e. where an order is
passed without hearing the party sought
to be affected by it or where the
procedure
adopted
is
opposed
to
principles of natural justice. A caution
was
indicated
by
saying
that
the
jurisdiction to issue a writ of certiorari is
a supervisory one and in exercising it, the
court is not entitled to act as a court of
appeal. That necessarily means that the
findings of fact arrived at by the inferior
court of tribunal are binding. An error of
law apparent on the face of the record
could be corrected by a writ of certiorari
but not an error of fact, however grave it
may appear to be. The rule in Yakoob's
case (AIR 1964 SC 477) when applied to
the present facts would lead to the
conclusion that the High Court exceeded
its jurisdiction in interfering with the
order of the Additional District Judge"

"Para 3 to be quoted"

13. The Apex Court has also laid
down the scope and parameters of
exercise of jurisdiction by this Court
under Article 227 in Surya Dev Rai Vs,
Ram Chander Rai and Others, 2003 (6)
SCC 675. It has been laid down by the
Apex Court in the said judgement that
jurisdiction under Article 227 is a
supervisory jurisdiction and not an
appellate jurisdiction. The High Court
while exercising its jurisdiction under
Article 227 shall not interfere with the
impugned judgement even though two
views are possible out of which one has
been followed by the Subordinate Court.
The High Court in exercise of jurisdiction
under Article 227 shall not re-appraise the
evidence and can interfere only when the
findings are based on no evidence or
perverse. The Supreme Court while
210 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

summing up the scope of exercise of
jurisdiction under Article 227 laid down
in para 38 (4,5 and 6) which are as
follows:

"38 (4). Supervisory
jurisdiction
under Article 227 of the Constitution is
exercised for keeping the subordinate
courts within the bounds of their
jurisdiction. When a subordinate court
has assumed a jurisdiction which it does
not have or has failed to exercise a
jurisdiction which it does have or the
jurisdiction though available is being
exercised by the court in a manner not
permitted by law and failure of justice or
grave injustice has occasioned thereby,
the High court may step in to exercise its
supervisory jurisdiction.
(5). Be it a writ of certiorari or the
exercise of supervisory jurisdiction, none
is available to correct mere errors of fact
or
of
law
unless
the
following
requirements are satisfied: (i) the error is
manifest and apparent on the face of the
proceedings such as when it is based on
clear ignorance or utter disregard of the
provisions of law, and (ii) a grave
injustice or gross failure of justice has
occasioned thereby.
(6). A patent error is an error which
is self-evident i.e. which can be perceived
or demonstrated without involving into
any lengthy or complicated argument or a
long-drawn process of reasoning. Where
two inferences are reasonably possible
and the subordinate court has chosen to
take one view, the error cannot be called
gross or patent."

14. Applying the parameters as laid
down by the Apex Court in above two
cases, the impugned judgement of 5th
Additional District Judge cannot be said
to be a judgement which can be interfered
with in exercise of jurisdiction by this
Court under Article 226 or 227 of the
Constitution of India. The Subordinate
Court has neither assumed a jurisdiction
which it does not have nor has failed to
exercise jurisdiction which it does have
nor there is any manifest error apparent
on the face of record committed by the
Court below. The Appellate Court has
given cogent reasons for rejecting the
application as noted above. The appeal
was pending for hearing for last 13 years
and was adjourned at the instance of the
appellant for 4th July, 1996. The Appellate
Court has found that no satisfactory
explanation was given for non-appearance
of the counsel on 4th July, 1996.

15. We are satisfied that in passing
the impugned judgement, the Appellate
Court has not committed such error which
may warrant interference by this Court in
exercise of its jurisdiction under Articles
226/227 of the Constitution of India. The
writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2009

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition (PIL) No.47304 of
2005
Connected with
Civil Misc. Writ Petition No. 10070 of 2006
Civil Misc. Writ Petition No. 57395 of 2008
Civil Misc. Writ Petition No. 58410 of 2008

Ramesh Chandra & others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri B.B. Paul
Sri A.P. Paul