# Syed Takhleekh Hyder and others v. Naziruddin and others - **Citation:** (2002) 3 ILRA 927 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2002-11-21 - **Case number:** Civil Misc. Application No. 23 of 2002 - **Bench:** S.K. Sen, C.J. S. Rafat Alam - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/syed-takhleekh-hyder-and-others-v-naziruddin-and-others-40036 - **Pages:** 3 ## Headnote Code of Civil Procedure- Order 43 (i) (t) read with order 41 r. 23- scope of Appeal- application to rehear the appeal rejected- such order is appealable- court declined to interfere under Article 227 of the Constitution - question of limitation shall be dealt liberally. Held - Para 4 In the instant case the appellate court on consideration of facts declined to re-hear the appeal and found that no sufficient cause was made out for such re-hearing. Accordingly, we are of the view that the proper course for the applicants is to http://www.allahabadhighcourt.nic.in 928 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 prefer an appeal against the order rejecting their application under order 43 Rule 1 (t). There is no scope for interference under Article 227 of the Constitution in such circumstances. Since the applicants proceeded on the basis of wrong advice and bonafide belief that the application under Article 227 of the Constitution lies in this Court, we are of the view that the question of limitation shall be liberally considered and appropriate order may be passed in the event the appeal is preferred on the question of limitation. It is, however, made clear that we have not adjudicated upon the questions raised before us. ## Text http://www.allahabadhighcourt.nic.in 3 All] Syed Takhleekh Hyder and others V. Naziruddin and others 927 others (supra) wherein the Hon'ble Supreme Court has held that the Certified Standing Orders become statutory condition of service and if any provision of such rules read with Certified Standing Orders confer absolute unfettered discretion on the employer to allow or disallow rightful claim of the employees would be unfair and unreasonable and also subject to test of Article 14;and the Court can judge the fairness and reasonableness as of the Certified Standing Orders and declaration is bad and an enforceable the proceedings arose out of a suit and not under writ jurisdiction. The Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation (supra) has held that the Certified Standing Orders framed under and in accordance with the Industrial Employment Standing Order Act 1946 are statutorily imposed condition of service and are binding both upon the employees and employers, though they do not amount to statutory provision. Any violation of these Standing Orders entitles an employee to appropriate relief offered before the forum created by the Industrial disputes act or by the Civil Court. Thus, the Certified Standing Orders being not a statutory provision, though they are statutory conditions of service, any violation thereof by a private body not discharging any public function or public duty are not amenable to writ jurisdiction under Article 226 of the Constitution of India and cannot be challenged straight away before this Court. Thus, the writ petitions being not maintainable, are liable to be dismissed. 22. Since we have held that the writ petition itself were not maintainable, we are not going into merits of the matter and leave it open to the writ petitioners to raise their grievances before the appropriate forum. 23. In the result, the special appeal nos. 803, 804 and 809 of 1993 are allowed and the judgment and orders dated 1.11.1993 is hereby set aside and the writ petition nos. 18116 of 1993, 18117 of 1993 and 18118 of 1993 are dismissed. Special Appeal Nos. 413 and 415 of 1998 fail and are hereby dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 21.11.2002 BEFORE THE HON'BLE S.K. SEN, C.J. THE HON'BLE S. RAFAT ALAM, J. Civil Misc. Application No. 23 of 2002 Syed Takhleekh Hyder and others ...Applicants Versus Naziruddin and others ...Opp. parties Counsel for the Applicant: Sri J.J. Munir Counsel for the Respondents: Code of Civil Procedure- Order 43 (i) (t) read with order 41 r. 23- scope of Appeal- application to rehear the appeal rejected- such order is appealable- court declined to interfere under Article 227 of the Constitution - question of limitation shall be dealt liberally. Held - Para 4 In the instant case the appellate court on consideration of facts declined to re-hear the appeal and found that no sufficient cause was made out for such re-hearing. Accordingly, we are of the view that the proper course for the applicants is to http://www.allahabadhighcourt.nic.in 928 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 prefer an appeal against the order rejecting their application under order 43 Rule 1 (t). There is no scope for interference under Article 227 of the Constitution in such circumstances. Since the applicants proceeded on the basis of wrong advice and bonafide belief that the application under Article 227 of the Constitution lies in this Court, we are of the view that the question of limitation shall be liberally considered and appropriate order may be passed in the event the appeal is preferred on the question of limitation. It is, however, made clear that we have not adjudicated upon the questions raised before us. (Delivered by Hon'ble S. Rafat Alam, J.) 1. We have heard Mr. J.J. Munir, learned counsel for the applicants. 2. This application under Article 227 of the Constitution has been filed against an order dated 25th September, 2002 whereby the appellate court declined to re-hear the appeal on the application made by the applicants under Order 41 rule 21, who were the plaintiffs in the original suit, which was decreed on merit and subsequently the defendant preferred appeal which was allowed ex-parte. The appellate court went into the question of sufficient cause for restoration and held that no sufficient explanation is made out for restoration of the appeal on merit. We are of the view that such an order declining to re hear the appeal is appealable under order 43 Rule 1 (t) of the Code of Civil Procedure. The provisions contained in Order 41 Rule 21 and also order 43 Rule 1 (t) of the Civil Procedure Code are set-out hereunder : Order 41 Rule 21 Re-hearing on application of respondent against whom ex parte decree made- where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re hear the appeal , and if he satisfied the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. Order 43 Rule 1. Appeal from Orders- An appeal shall lie from the following orders under the provisions of Section 104, namely - (a) .......... (b) .......... (c) .......... (d) .......... (e) .......... (f) .......... (g) .......... (h) .......... (i) .......... (j) .......... (k) .......... (l) .......... (m) .......... (n) .......... (o) .......... (p) .......... (q) .......... (r) .......... (s) .......... (t) an order of refusal under rule 19 of Order XLI to re admit, or under rule 21 of Order XLI to re hear, an appeal; 3. On proper interpretation of the aforesaid provisions of the Code of Civil Procedure, it appears to us that the scope of order 41 Rule 21 is that the appellate court can order, on sufficient cause being http://www.allahabadhighcourt.nic.in 3 All] No.EX 6803526 L/NK/NA Uma Shanker Rai V. Union of India and others 929 shown, for re-hearing of the appeal. We are accordingly of the view that the scope of order 43 rule 1 (t) is that in the event the appellate court declines to re hear the appeal, an appeal shall lie. 4. In the instant case the appellate court on consideration of facts declined to re hear the appeal and found that no sufficient cause was made out for such re hearing. Accordingly, we are of the view that the proper course for the application is to prefer an appeal against the order rejecting their application under order 43 rule 1 (t). There is no scope for interference under Article 227 of the Constitution in such circumstances. Since the applicants proceeded on the basis of wrong advice and bonafide belief that the application under Article 227 of the Constitution lies in this Court, we are of the view that the question of limitation shall be liberally considered and appropriate order may be passed in the event the appeal is preferred on the question of limitation. It is, however, made clear that we have not adjudicated upon the questions raised before us. 5. The application, is accordingly, dismissed with the above observation. Office shall return the certified copy of the impugned order to the learned counsel for the applicants. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.11.2002 BEFORE THE HON'BLE S.K. SEN, C.J. THE HON'BLE R.K. AGRAWAL, J. Special Appeal No. 644 of 2001 No.EX 6803526 L/NK/NA Uma Shanker Rai ...Appellant Versus Union of India and others ...Respondents Counsel for the Appellant: Sri B.N. Rai Counsel for the Respondents: Sri S.K. Rai High Court Rules Chapter VIII Rule 5- non payment of pension or salary gives rise to a recurring cause of action- Single Judge was not justified in dismissing the writ petition of the appellant on account of delay and he should have decided the question of entitlement of disability pension to the petitioner on merit (Held in para 11). Case referred: (Dictated by Hon'ble S.K. Sen, C.J.) 1. Heard Shri B.N. Singh learned counsel for the appellant-writ petitioner and Shri S.K. Rai learned Additional Standing Counsel for the respondents. 2. There is sufficient ground to condone the delay in filing the Special Appeal. The delay is condoned. 3. This Special Appeal arises out of the order passed by the Learned Single Judge dated 29.8.2001 dismissing the writ petition filed for the claim for payment of disability pension.