# Sudhir Kumar Srivastava v. Alok Kumar Mukherjee, The Then Sr. Registrar Of Hon'ble High Court

- **Citation:** (2021) 2 ILRA 355
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-18
- **Case number:** Contempt No. 1213 of 2019
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudhir-kumar-srivastava-v-alok-kumar-mukherjee-the-then-sr-registrar-of-hon-ble-46792
- **Pages:** 5

## Headnote

A. Contempt of Courts Act, 1971-Section
19-maintainabilty
of-contempt
petition
was dismissed-application -for recall of
order-rejection-court has no power to
review or recall the order dismissing the
contempt petition on merit-a division
bench judgment held that the Act of 1971
impliedly excludes the power of recall or
review-application for recall filed by the
petitioner simply indicating it to be a
recall of the order is in fact an order for
review as would be apparent from perusal
of the averments made in the said
affidavit along with the averments made
in the written submissions-Hence, keeping
in view the law laid down by the Apex
Court, it is apparent that the application in
356 INDIAN LAW REPORTS ALLAHABAD SERIES
effect
and in
substance
is
one
for
review.(Para 1 to 21)

The application is rejected. (E-5)

List of Cases cited:-

## Text

2 All. Sudhir Kumar Srivastava Vs. Alok Kumar Mukherjee, The Then Sr. Registrar Of Hon'ble High Court
355

16. The said issue is no longer res
integra considering that it is settled
proposition of law that mere mentioning of
wrong provision of law in the title would
not render the said application to be
rejected rather the Board of Revenue
correctly proceeded to entertain and decide
the same and the said decision would have
to be under the provisions of Section 210 of
the Code, 2006 which is akin to Section
219 of the Act, 1901.

16. This aspect of the matter would
also be clear from the heading of the
revision filed by the applicant which itself
indicates that a revision was being filed
under the provisions of Section 219 of the
Act, 1901 along with Section 210 of the
Code, 2006.

17. The next question which arises is
as to whether when the said revision has
been entertained and an order passed, as to
whether the applicant has a remedy of
having the said order enforced.

18. For this, the Court has taken the
assistance of the provisions of the Uttar
Pradesh
Revenue
Court
Manual
(hereinafter referred to as "Manual") which
provides in Chapter 43 Clause 460 for
compliance of a decree or order passed by
the Board of Revenue under the provisions
of the Code, 2006 or rules framed under the
provisions of Code, 2006. Clause 460
clearly provides that any decree or order
passed under the provisions of the Code,
2006 can be executed as per the procedure
prescribed in Chapter 5 of the Manual.

19. Consequently, considering the law
laid down by the Apex Court in the case of
K.S.Raju (supra) as well as the provisions
of Chapter 43 Clause 460 it is apparent that
the applicant would have a remedy of
having the orders dated 13.12.2017 and
11.02.2020 enforced under the provisions
of the Manual and thus, once such a
remedy is available to the applicant, this
Court declines to issue notice in the
contempt proceedings.

20.

The
contempt
petition
is
dismissed.
----------
(2021)02ILR A355
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2021

BEFORE

THE HON'BLE ABDUL MOIN, J.

Contempt No. 1213 of 2019

Sudhir Kumar Srivastava ...Applicant
Versus
Alok Kumar Mukherjee, The Then Sr.
Registrar Of Hon'ble High Court
 ...Opposite Party

Counsel for the Applicant:
Jyotinjay Verma

Counsel for the Opposite Party:
Gaurav Mehrotra

A. Contempt of Courts Act, 1971-Section
19-maintainabilty
of-contempt
petition
was dismissed-application -for recall of
order-rejection-court has no power to
review or recall the order dismissing the
contempt petition on merit-a division
bench judgment held that the Act of 1971
impliedly excludes the power of recall or
review-application for recall filed by the
petitioner simply indicating it to be a
recall of the order is in fact an order for
review as would be apparent from perusal
of the averments made in the said
affidavit along with the averments made
in the written submissions-Hence, keeping
in view the law laid down by the Apex
Court, it is apparent that the application in
356 INDIAN LAW REPORTS ALLAHABAD SERIES
effect
and in
substance
is
one
for
review.(Para 1 to 21)

The application is rejected. (E-5)

List of Cases cited:-

1. Delhi Adminstration Vs Gurdip Singh Uban &
ors.,(2000) 7 SCC 296

2.
Sharwan
Kumar
Vs
Harminder
Raj
Singh(IAS),Contempt Petition No. 1591 of 2000

3. St. Vs. Baldev Raj (1991) SCC Online All 1070

4. Municipal Corporation of Greater Mumbai &
anr. Vs Pratibha Industries Ltd. & ors.(2019) 3
SCC 203

5. Maharaja Dharmendra Prasad Singh & anr.
Vs Vivek Agarwal & ors. (2010) 28 LCD 323

(Delivered by Hon'ble Abdul Moin, J.)

(C.M. Application No.11525 of 2020)

1. Heard learned counsel for the
applicant and Sri Gaurav Mehrotra, learned
counsel for the respondent.

2. An application for recall has been
filed seeking recall of the order dated
20.01.2020 passed in Contempt Petition
No.1213 of 2019 in re: Sudhir Kumar
Srivastava vs. Alok Kumar Mukherjee, by
which the contempt petition had been
dismissed. The said application has been
filed by learned counsel for the applicant
duly supported by an affidavit of one Sri
Shanti Sewak, describing himself to be the
Clerk of learned counsel for the applicant.
It has also been indicated in paragraph 2 of
the affidavit that the applicant is an affected
person and has been falsely implicated. It is
not understood as to what prevailed upon
the Clerk of the learned counsel for the
applicant to file an application for recall
inasmuch it has not been indicated in the
said affidavit as to what has precluded or
prevented the applicant himself namely
Sudhir Kumar Srivastava from filing the
said application and it has been left for the
Clerk of the learned counsel to indicate that
the applicant has been falsely implicated.

3. Be that as it may, the fact of the
matter is that the Court vide order dated
20.01.2020 had dismissed the contempt
petition after considering the facts and
circumstances of the case.

4. Upon the application for recall
being taken up, a preliminary objection has
been raised by Sri Gaurav Mehrotra,
learned counsel for the respondent, that the
application for recall in effect is seeking
review of the order dated 20.01.2020 by
which the contempt petition had been
dismissed and once no power of review is
vested with the Court under the Contempt
of Courts Act, 1971 (for short, 'Act of
1971') as such the said application merits to
be rejected on this ground alone.

5. In support of the said argument,
learned counsel for the respondent has
placed reliance on a judgment of the Apex
Court in the case of Delhi Administration
vs. Gurdip Singh Uban and others -
(2000) 7 SCC 296, to contend that an
application for "clarification, modification
or recall" in substance is an application for
review.

6. Placing reliance on a judgment of
this Court passed in Contempt Petition
No.1591 of 2000 in re: Sharwan Kumar
vs. Harminder Raj Singh (IAS), decided
on 09.02.2016, it is argued that the Court
has held that where a contempt petition has
been
dismissed
on
merits
then
an
application for recall would not be
maintainable.
2 All. Sudhir Kumar Srivastava Vs. Alok Kumar Mukherjee, The Then Sr. Registrar Of Hon'ble High Court
357

7. Reliance has also been placed on a
Division Bench judgment of this Court in
the case of State vs. Baldev Raj - 1991
SCC OnLine All 1070, which has also
held the same.

8. Placing reliance on the aforesaid
judgments, Sri Gaurav Mehrotra, learned
counsel for the respondent, submits that the
preliminary objection merits to be upheld
and the application for recall merits to be
rejected.

9. On the other hand, learned counsel
for the applicant on the basis of averments
contained in paragraph 5 of the application
for recall as well as paragraph 13 of the
written submissions filed by the learned
counsel for the applicant dated 04.03.2020
contends that as this Court has "failed" to
peruse the records of the case and notice
the averments made on affidavit as such the
application
for
recall
would
be
maintainable. Various other grounds have
also been taken on the merits of the case so
much so that in paragraph 6 of the
application it has been contended that
certain submissions of the counsel for the
applicant as have been quoted verbatim in
the said paragraph of the application, were
not the submissions of the counsel for the
applicant/petitioner.

10. Strangely, the averments of
paragraph 6 of the affidavit have been
sworn by the Clerk on the basis of
information derived from the learned
counsel for the applicant. What is strange is
that the order dated 20.01.2020 was
dictated in the open Court and no demur or
protest was raised by the learned counsel
for the applicant at the time of dictation of
the said order that allegedly wrong
submissions were being recorded and now
in an affidavit sworn by the Clerk of the
learned counsel for the applicant the said
plea is being taken !

11. On the ground of maintainability
of the application for recall, learned
counsel for the applicant has placed
reliance on the judgment of the Apex Court
in the case of Municipal Corporation of
Greater
Mumbai
and
another
vs.
Pratibha Industries Limited and others -
(2019) 3 SCC 203, to contend that the High
Court being a Court of record has
jurisdiction to recall its own order and that
while exercising the power under Article
226 of the Constitution of India nothing
precludes the High Court from exercising
the power of review which inheres in every
Court of plenary jurisdiction.

12. Reliance has also been placed on a
Division Bench judgment of this Court in
the case of Maharaja Dharmendra
Prasad Singh and another vs. Vivek
Agarwal and others - 2010 (28) LCD 323
that following the maxim "Actus Curiae
Neminem Gravabit", i.e. an act of the Court
shall prejudice no man, this Court is vested
with the power to recall the order dated
20.01.2020 passed on merits.

13. Having heard learned counsel for
the parties and having perused the records,
what is apparent is that the order dated
20.01.2020 had been passed on merits
dictated in open Court whereby the Court
not finding any contempt to have been
committed by the respondent/contemnor,
proceeded to dismiss the contempt petition.

14. Now an application for recall has
been filed trying to argue certain points and
trying to indicate that the Court "failed" to
peruse the records and notice the averments
made on an affidavit and supporting
annexures.
358 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The order dated 20.01.2020 is not
an order by which the contempt petition
may have been dismissed in default rather
it is an order passed on merits. Thus, the
application
for
recall
filed
by
the
applicant/petitioner by simply indicating it
to be a recall of the order is in fact an order
of review as would be apparent from
perusal of the averments made in the said
affidavit along with the averments made in
the written submissions. Thus, keeping in
view the law laid down by the Apex Court
in the case of Gurdip Singh Uban
(supra), it is apparent that the application
in effect and in substance is one for review.

16. It is settled proposition of law that
a review or an appeal is a statutory remedy.
In this regard, a coordinate Bench of this
Court in the case of Sharwan Kumar
(supra) has held as under:-

"After hearing learned counsel
for parties and going through the record,
the first and foremost question to be
considered that if the contempt petition
has already been dismissed on merit then
the whether the application for recall of
the said order is maintainable or not ?

Answer to the said question finds
place in the Division Bench judgment of
this Court passed in the case of Mahaveer
Prasad Verma Vs. Central Administrative
Tribunal, Lucknow and others, 2013 (31)
LCD 351, in paragraph No. 4 held as
under:-

"By the order dated 10.1.2012,
the
contempt
petition
filed
by
the
petitioner, was dismissed in his absence
on
the
ground
that
the
petitioner
respondent has not moved any application
to bring on record the successor since the
contemner
was
transferred.
Tribunal
noted that an application for recall of an
order passed in a contempt proceeding, is
not maintainable. So far as the finding of
Tribunal that recall/review application is
not maintainable, seems to be correct.
Virtually, recalling of the order dated
10.1.2012, will amount to review of earlier
decision was was passed with the finding
on merit to the extent that successor
officer has not been brought on record.
Review/recall or appeal are the statutory
remedies,
vide
AIR
1966
SC
641,
Harbhajan Singh v. Karam Singh and
others, 1988 (14) ALR 706, Vijai Bahadur
Vs. State of U.P., 1995 (26) ALR 627, Ram
Jiwan Singh and others Vs. The District
Inspector of Schools, Kanpur and others,
1979 (5) ALR 168, 1998 (33) ALR 456,
New India Assurance Co. Ltd. Vs. Smt.
Bimla Devi and others, 1997 (88) RD 562,
Smt. Shivraji and others Vs. Dy. Director
of Consolidation, Allahabad and others,
AIR
1970
SC
1273,
Patel
Narshi
Thakershi
and
others
Vs.
Pradyumansinghji Arjunsinghji, 1987 (13)
ALR 680, Dr. (Smt.) Kuntesh Gupta Vs.
Mgt. of Hindu Kanya Mahavidyalaya,
Sitapur etc., AIR 1964 SC 436, Laxman
Purushottam Pimputkar Vs. The State of
Bombay and others, and AIR 1965 SC
1457, Patel Chunibhai Dajibha etc. Vs.
Narayanrao Khanderao Jambekar and
another. Unless provided under the Act,
no application for review/recall may be
moved. The contempt of Courts Act, 1971
does not contain any provision for review
of a judgment. Hence the impugned order
dated 13.9.2012 does not seem to suffer
from any impropriety or illegality"

17. Apart from above, there is no
power under the Act of 1971 conferring
any power of review and thus no such
power can be exercised by this Court.

18. A Division Bench of this Court in
the case of Baldev Raj (supra) has also
2 All. Chaman Lal Vs. State of U.P.
359
held that the Act of 1971 impliedly
excludes the power of recall or review.

19. So far as the judgment of the
Division Bench of this Court in the case of
Maharaja Dharmendra Prasad Singh
(supra) is concerned, that was a case in
which despite filing of a caveat by learned
counsel for the respondent, the caveat had
not been noted by the Registry, with the
result that an ex-parte interim order was
passed by the High Court. Considering the
said fact, the High Court after applying the
maxim Actus Curiae Neminem Gravabit
recalled the said order. Thus, the facts and
ratio of the said case are not applicable
here.

20. Likewise, the judgment of the
Apex Court in the case of Pratibha
Industries Limited (supra) was a case in
which the application filed under Section 9
of the Arbitration and Conciliation Act,
1996 (for short, 'Act of 1996') had been
entertained and an injunction had been
granted on the ground that there was an
arbitration clause in the contract. An
arbitrator had also been appointed by the
High Court. An application for recall was
filed
contending
that
there
was
no
arbitration clause and thus the order was
recalled by the Single Judge. Upon an
appeal being filed under Section 37 of the
Act of 1996, the Division Bench set-aside
the order of recall on the ground that there
was no power to review or recall the said
order vested with the Court under the Act
of 1996. Upon the matter being carried to
the Apex Court, the Apex Court held that
once there was no arbitration agreement
consequently the provisions of the Act of
1996 were itself not applicable and hence
proceeded to set-aside the Division Bench
judgment of the High Court. Thus, the very
applicability of the Act of 1996, in which
the order was passed, was held to be
inapplicable by the Apex Court and
accordingly, the order of Single Judge of
High Court recalling his order appointing
the arbitrator was upheld despite there
being no provision in the Act 1996 for
review an order. In the instant case it is not
the case of the applicant/petitioner that the
Act of 1971 is not applicable. Hence, the
judgment
in
the
case
of
Pratibha
Industries Limited (supra) may not be of
any help to the applicant/petitioner.

21.

Considering
the
aforesaid
discussions, it is apparent that this Court
has no power to review or recall the order
dismissing the contempt petition on merits.
Accordingly, the preliminary objection is
upheld and the application for recall of
order dated 20.01.2020 is rejected.
----------
(2021)02ILR A359
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.01.2021

BEFORE

THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 89 of 1987

Chaman Lal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
G.K. Pandey, Anurag Shukla (Ac)

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) &
Indian Penal Code, 1860-Section 302/34challenge to-conviction-acquittal for want
of trial court record-after a long gap of