# The Manager, State Bank of Bikaner and Jaipur Muzaffarnagar v. The Presiding Officer

- **Citation:** (2020) 6 ILRA 248
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Writ-C No. 4682 of 2011
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-manager-state-bank-of-bikaner-and-jaipur-muzaffarnagar-v-the-presiding-45786
- **Pages:** 8

## Headnote

A. Labour Law - The Industrial Disputes
Act, 1947 - Section 25G - Non grant of backwages - - Procedure for retrenchment, section
25H - Re-employment of retrenched workmen -
The Industrial Disputes (Central) Rules, 1957 -
Rules 77 - Maintenance of seniority list of
workmen , Rules 78 - Re-employment of
retrenched workmen - unless findings with
regard to the provisions of Rules 77 and 78 of
the Central Rules and with regard to the
provisions of section 25G are given, the Tribunal
could not have arrived at a proper conclusion as
to whether the provisions of section 25H were
violated - award requires no interference.
 (Para - 7,8)

Management of State Bank of Bikaner & Jaipur -
terminating the services of workmen - not
giving them opportunity for re-employment - no
proper seniority list was maintained - no proper
opportunity to the respondents, as was required
to be given under the Rules, was provided
before regularising persons junior to them -
Tribunal correctly found that the delay on the
part of the respondent-workmen was negligible .
(Para-7)

HELD:- The workmen must have been taken
back in service as per the interim orders of this
Court and, therefore, it is not appropriate to
grant any back-wages as since 2011 they must
have been getting their regular salaries.(Para-9)

Petitions dismissed.(E-7)
List of Cases Cited:-

## Text

248 INDIAN LAW REPORTS ALLAHABAD SERIES

28. The judgements of this Court in
Ibrahim Khan (Supra) and of Supreme
Court in Prem Singh (Supra) referred by
respondent no. 3 do not deal with the issue
regarding the relevance or admissibility in
evidence of a void and uneforceable
document for purposes other than the
enforceability of the document and are
therefore not applicable in the present case.

29. It is true that this Court under
Article 226 of the Constitution of India,
does not interfere in findings of fact
recorded by the tribunals but in the present
case the S.O.C. and the D.D.C. have
ignored material evidence, i.e., the Will
dated 29.3.1946 and the original birth
register of 1916, and have also considered
an irrelevant material, i.e., the certified
copy of the birth register of 1916 filed by
respondent no. 3, to support their findings.
The reasons recorded by the consolidation
courts to not consider the Will dated
29.3.1946 and the recital in it while
assessing the different evidence filed by the
parties is vitiated by error of law which is
apparent on the face of record. Thus, the
impugned orders passed by the S.O.C. and
the D.D.C. are liable to be quashed and the
matter is liable to be remanded back to the
S.O.C. to pass fresh orders in accordance
with law.

30. In view of the reasons recorded
previously, no opinion is required to be
expressed on the probative value of other
evidences filed by the parties which shall
be considered by the S.O.C. in light of the
observations previously made in the present
judgement.

31. For the aforesaid reasons, the
orders dated 30.4.2013 and 28.2.2003
passed
by
the
Deputy
Director
of
Consolidation,
Kushinagar
and
the
Settlement Officer of Consolidation, Kasya,
District-Kushinagar are hereby quashed.
The matter is remanded back to the
Settlement Officer of Consolidation, Kasya,
District-Kushinagar to pass fresh orders in
accordance with law and in light of the
observations made in the judgement. The
settlement Officer of Consolidation shall
pass fresh orders within a period of six
months from today and the consequential
revision filed by the aggrieved parties shall
also be decided by the Deputy Director of
Consolidation within two months from the
date of filing. It is clarified that in any case,
the proceedings restarted as a consequence
of the present order shall be completed
within a period of one year from today. In
order to ensure that the proceedings are
completed within one year from today the
consolidation authorities shall be at liberty
to hold day to day hearing in the cases filed
before them. The Collector, Kushinagar, is
directed to ensure compliance of the
present order.

32. The Register General of this Court
is directed to send a copy of this order to
the Collector, Kushinagar.

33. The parties shall maintain status
quo and not create any third party rights in
the disputed plot till the culmination of the
proceedings as directed above.

34. With the aforesaid directions, the
writ petition is allowed.
----------
(2020)06ILR A248
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2020

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Writ-C No. 4682 of 2011
6 All. The Manager, State Bank of Bikaner and Jaipur Muzaffarnagar Vs. The Presiding Officer,
Central Government Industrial Tribunal-cum-Labour Court, Kanpur & Ors.
249
&
Writ-C No. 37335 of 2011

The Manager, State Bank of Bikaner and
Jaipur Muzaffarnagar ...Petitioner
Versus

The Presiding Officer, Central Government
Industrial
Tribunal-cum-Labour
Court,
Kanpur & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vipin Sinha, Sri Satish Chaturvedi

Counsel for the Respondents:
S.C., Sri A. Khare, Sri S. Khare

A. Labour Law - The Industrial Disputes
Act, 1947 - Section 25G - Non grant of backwages - - Procedure for retrenchment, section
25H - Re-employment of retrenched workmen -
The Industrial Disputes (Central) Rules, 1957 -
Rules 77 - Maintenance of seniority list of
workmen , Rules 78 - Re-employment of
retrenched workmen - unless findings with
regard to the provisions of Rules 77 and 78 of
the Central Rules and with regard to the
provisions of section 25G are given, the Tribunal
could not have arrived at a proper conclusion as
to whether the provisions of section 25H were
violated - award requires no interference.
 (Para - 7,8)

Management of State Bank of Bikaner & Jaipur -
terminating the services of workmen - not
giving them opportunity for re-employment - no
proper seniority list was maintained - no proper
opportunity to the respondents, as was required
to be given under the Rules, was provided
before regularising persons junior to them -
Tribunal correctly found that the delay on the
part of the respondent-workmen was negligible .
(Para-7)

HELD:- The workmen must have been taken
back in service as per the interim orders of this
Court and, therefore, it is not appropriate to
grant any back-wages as since 2011 they must
have been getting their regular salaries.(Para-9)

Petitions dismissed.(E-7)
List of Cases Cited:-

1. Mukand Ltd. Vs Mukand Staff & Officers'
Assc., (2004) 10 SCC 460

2. State Bank of Bikaner & Jaipur Vs Om
Prakash Sharma, (2006) 5 SCC 123

3.
Mang.
of
the
Barara
Cooperative
Marketing-cum-Processing Society Ltd. Vs
Workman Pratap Singh. (2019) 2 SCC 743

4. State Bank of Bikaner and Jaipur Vs
Anurag Sharma, 2009 (9) ADJ 141

5. Prataprai N. Kothari Vs Jhon Braganza, (1999)
4 SCC 403

6. O.B.C. Vs U.O.I. & ors., (1997) 76 FLR 393

7. Gujarat State Machine Tools Corporation
Limited, Bhavnagar Vs Deepak J. Desai, (1987)
55 FLR 527

8. Ajaib Singh Vs The Sirhind Co-Operative
Marketing-cum-Processing Service Society Ltd.
& ors., (1999) 6 SCC 82

(Delivered by Hon'ble SiddharthaVarma, J.)

1. Writ Petition No.4682 of 2011 has
been filed against the award of the Central
Government
Industrial
Tribunal-cumLabour Court. The respondent nos.2 and 3,
who are petitioners in Writ Petition
No.37335 of 2011 had raised an industrial
dispute and a Reference was made by the
relevant Government on 23/24 June 1999
which was to the following effect :-

"Whether the action of the
management of State Bank of Bikaner &
Jaipur in terminating the services of Shri
Dinesh Kumar Bansal and Shri Ravindra
Kumar and not giving them opportunity for
re-employment is legal and justified? If not,
to what relief the said workmen are
entitled?"
250 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Respondent no.2 had come up with
a case that he was engaged with the
petitioner-Bank
on
21.11.1983
as
a
temporary Clerk-cum-Cashier and was
thereafter disengaged from service on
8.2.1984. The respondent no.3 also had a
similar case and he stated that he was
engaged on 21.3.1983 as a temporary Clerk
and was disengaged on 8.6.1983. The
respondent nos.2 and 3 had come up with a
case that they were entitled to be absorbed
as regular employees. They had taken a
case that when they were retrenched they
were not the junior most temporary
employees in the organization, meaning
thereby their services were done away with
in violation of the provisions of Section
25G of the Industrial Disputes Act, 1947
(hereinafter referred to as the "Central
Act"); and it was stated after they were
removed, fresh hands were recruited in
violation of the provisions of section 25H
of the Central Act. It was stated that these
actions of the employer were in violation of
the SASTRY Award and the bipartite
agreement between the bank and Workers'
Union. The petitioner-Bank had opposed
the claim of the respondent nos.2 and 3
before the Tribunal.

3. However, the Tribunal, before
which pleadings were filed and oral
evidence were led, on 15.7.2010 passed an
award by which the respondent nos. 2 and 3
were reinstated but without back-wages.

4. Sri Satish Chaturvedi, learned
counsel for the petitioner assailed the
award on the following amongst other
grounds :-

(i) The Reference to the Tribunal
did not mention either the date of the
alleged termination or the posts on which
the respondent nos.2 and 3 were engaged,
making the Reference vague.

(ii) Even though there was no
Reference with regard to the violation of
Rules 77 and 78 of "The Industrial
Disputes
(Central)
Rules,
1957"
(hereinafter referred to as the "Central
Rules") yet, the Tribunal had given findings
with regard to the violation of the
provisions of those Rules and had found
that there was definite violation of the
provisions of Rules 77 and 78 of the
Central Rules. Learned counsel for the
petitioner submitted that the Tribunal was a
Court of Reference and it was bound by the
Reference made to it. In this regard, learned
counsel for the petitioner relied upon
(2004) 10 SCC 460 : Mukand Ltd. vs.
Mukand Staff & Officers' Association.
He further submitted that if the Tribunal
exceeded its jurisdiction then the award
was bad on account of a jurisdictional error.
In this regard, learned counsel for the
petitioner relied upon (2006) 5 SCC 123 :
State Bank of Bikaner & Jaipur vs. Om
Prakash Sharma.

(iii) When the Reference to the
Tribunal in effect was as to whether there
was any violation of the provisions of
section 25H of the Central Act and when no
information was provided as to who were
the employees junior to the respondents
working in the establishment then the
award could not be sustained. Learned
counsel submitted that Ashok Kumar Jain
and Anil Kumar who were appointed in
1983 and 1984 were appointed at the time
the respondents were also appointed. So far
as Shyam Singh and Mukesh Kumar were
concerned, they were of a different
category as they had been recruited through
the Bank. Learned counsel therefore
submitted that regularising persons who
had already been working would not attract
the provisions of section 25H of the Central
6 All. The Manager, State Bank of Bikaner and Jaipur Muzaffarnagar Vs. The Presiding Officer,
Central Government Industrial Tribunal-cum-Labour Court, Kanpur & Ors.
251
Act. In this regard, learned counsel for the
petitioner relied upon (2019) 2 SCC 743 :
Management of the Barara Cooperative
Marketing-cum-Processing Society Ltd.
vs. Workman Pratap Singh. Learned
counsel in order to give strength to his
argument that a retrenched employee had
no absolute right for re-employment relied
upon 2009 (9) ADJ 141 : State Bank of
Bikaner and Jaipur vs. Anurag Sharma.
Learned counsel further submitted that
since the Reference was only with regard to
the alleged violation of the provisions of
section 25H of the Central Act, the only
issue which was required to be seen was as
to
whether
any
opportunity
to
the
retrenched workman was given or not for
re-employment when vacancies arose and
others were given employment. In this
regard, learned counsel submitted that the
Circular dated 16.8.1990 which was made a
part of the record of the Tribunal and was
also a part of the record of the writ petition
was an opportunity enough for the
respondent-employees to have approached
the Bank. He further submitted that there
was earlier to 16.8.1990, another Circular
issued on 23.4.1987 in various newspapers.
The
respondents
had
purposely
not
responded to the Circulars and, therefore,
now they could not claim any right under
the provisions of section 25H of the Central
Act.

(iv) Learned counsel for the
petitioner
further
submitted
that
the
Tribunal erred in insisting that notice to the
respondents ought to have been as per the
provisions of Rules 77 and 78 of the
Central Rules.

(v) When there was no pleading
then oral evidence as was led by the
respondents was not to be read. In this
regard, learned counsel for the petitioner
relied upon (1999) 4 SCC 403 : Prataprai
N. Kothari vs. Jhon Braganza.

(vi) In the end, learned counsel
for the petitioner submitted that the
respondent nos.2 and 3 after being
disengaged, raised the industrial dispute
very late in the day. The Reference itself
was made on 23/24 June 1999; the award
came in the year 2010; the workmen were
not in employment of the petitioner since
the last 37 years; the respondent no.2, at the
time of filing of the counter affidavit, was
aged about 48 years and now was more
than 57 years of age whereas respondent
no.3, at the time of filing of the counter
affidavit was aged about 46 years and now
he was more than 55 years of age and,
therefore, they be not granted any relief.
Learned counsel also submitted that the
respondents were not entitled for any backwages as they had raised the industrial
dispute very belatedly and, therefore, the
connected writ petition being Writ Petition
No.37335 of 2011 be dismissed.

5. Learned counsel for the respondent
nos.2 and 3 in Writ Petition No.4682 of
2011 (and as a counsel for the petitioners in
Writ Petition No.37335 of 2011) however,
supported the award to the extent that it had
directed for the reinstatement of the
respondent nos.2 and 3 and submitted that
when the issue with regard to the violation
of the provisions of section 25H of the
Central Act was being considered, then it
became imperative that the findings with
regard to the provisions of section 25G of
the Central Act and Rules 77 and 78 of the
Central Rules be given. In this regard,
learned counsel for respondent nos.2 and 3
relied upon 1997 (76) FLR 393 : Oriental
Bank of Commerce vs. Union of India &
Ors. and 1987 (55) FLR 527 : Gujarat
State
Machine
Tools
Corporation
Limited, Bhavnagar vs. Deepak J. Desai.
Learned counsel further submitted that
when there was violation of the provisions
252 INDIAN LAW REPORTS ALLAHABAD SERIES
of Rules 77 and 78 of the Central Rules and
when it was evident from the award that
juniors were absorbed to the detriment of
the petitioners then the award could not be
interfered with so far as it reinstated the
workmen-respondent nos.2 and 3. Learned
counsel further submitted that the Industrial
Disputes Act,
1947
was
a
welfare
legislation and when an industrial dispute
was raised by the respondents upon gaining
knowledge of the fact that persons junior to
them were being regularised then it was in
the fitness of things that the delay of a few
years was condoned by the Tribunal.
However, learned counsel for respondent
nos.2 and 3 submitted that the delay of
almost 11 years which was committed by
the Tribunal should not have been there.
Learned counsel submitted that the High
Court had protected the interest of the
respondents
when
the
orders
dated
23.8.2011 and 13.7.2012 were passed. The
orders dated 23.8.2011 and 13.7.2012 as
were read out by the learned counsel are
being reproduced here as under :-

Order dated 23.8.2011 passed in
Writ-C No.4682 of 2011

"Counter affidavit and rejoinder
affidavits have been exchanged. Heard
counsel for the parties.

The petition is admitted for
hearing.

The
interim
order
dated
27.1.2011 is modified to the extent that
petitioner shall reinstate the workmen in
view of section 17-B of the Industrial
Disputes Act, 1947 as the workman is said
to have filed affidavit that they were not
gainfully employed after alleged illegal
termination from service and that the court
below has recorded a categorical finding of
fact that the workmen were not gainfully
employed. The employer/petitioner will
reinstate the workmen within a period of
one month from today and pay them their
salary month to month in accordance with
law till further orders."

Order dated 13.7.2012 passed
in Writ-C No.4682 of 2011

"(Order
on
Modification
Application)

Heard learned counsel for the
parties.

This Court vide order dated
23.8.2011 had modified its interim order
dated 27.1.2011 in the following terms:

"The
interim
order
dated
27.1.2011 is modified to the extent that
petitioner shall reinstate the workmen in
view of section 17-B of the Industrial
Disputes Act, 1947 as the workman is said
to have filed affidavit that they were not
gainfully employed after alleged illegal
termination from service and that the court
below has recorded a categorical finding of
fact that the workmen were not gainfully
employed. The employer/petitioner will
reinstate the workmen within a period of
one month from today and pay them their
salary month to month in accordance with
law till further orders."

Learned
counsel
for
the
petitioner advanced an argument that it
is always open to the employer to take
work from the employee or not to take
work from the employee and paid him
his wages/salary. Section 17-B of the
Industrial Disputes Act, 1947 provides
for salary last drawn by the workman in
whose favour award is given. It is stated
that the workmen concerned are being
paid wages accordingly as directed by
this Court vide order dated 27.1.2011
and a modification application by the
workmen concerned has been filed as
the employer were compelled by the
reason of contempt application filed by
6 All. The Manager, State Bank of Bikaner and Jaipur Muzaffarnagar Vs. The Presiding Officer,
Central Government Industrial Tribunal-cum-Labour Court, Kanpur & Ors.
253
the workmen concerned that they are
entitled the current salary even without
working.

Learned
counsel
for
the
respondents has submitted that in the
meantime they will not press the contempt
petition and further they may be granted
time to file objection to the modification
application. The petitioner has sought the
modification application for not compelling
to take the work from the workmen
concerned.

As prayed, two weeks time is
allowed to Shri Siddharth Khare, learned
counsel for the respondents for filing
objection
to
the
application
for
modification of the order. Learned counsel
for the applicant is also allowed two weeks'
time to file reply to the objection, if any,
filed by Shri Siddharth Khare.

List immediately after expiry of
the aforesaid four weeks."

6. This would mean that the
respondents had been taken back in service
and must have also been granted their
salaries. However, learned counsel for the
respondent-workmen submitted that the
Tribunal erred in not granting the backwages and relied upon (1999) 6 SCC 82 :
Ajaib Singh vs. The Sirhind CoOperative
Marketing-cum-Processing
Service Society Limited & Ors.

7. Having heard learned counsel for
the Bank and the workmen, I am of the
view
that
the
award
requires
no
interference. Since sections 25G and 25H
of the Central Act and Rules 77 and 78 of
the Central Rules were referred to by the
learned counsel, they are being reproduced
here as under :-

"Section 25G. Procedure for
retrenchment.--Where any workman in an
industrial establishment, who is a citizen of
India, is to be retrenched and he belongs to
a particular category of workman in that
establishment, in the absence of any
agreement between the employer and the
workman in this behalf, the employer shall
ordinarily retrench the workman who was
the last person to be employed in that
category, unless for reasons to be recorded
the
employer
retrenches
any
other
workman.

Section 25H. Re-employment of
retrenched
workmen.--Where
any
workmen are retrenched, and the employer
proposes to take into his employ any
persons, he shall, in such manner as may be
prescribed, give an opportunity to the
retrenched workmen who are citizens of
India
to
offer
themselves
for
reemployment, and such retrenched workmen
who offer themselves for re-employment
shall have preference over other persons.

Rule
77.
Maintenance
of
seniority list of workmen.--The employer
shall prepare a list of all workmen in the
particular
category
from
which
retrenchment is contemplated arranged
according to the seniority of their service in
that category and cause a copy thereof to be
pasted on a notice board in a conspicuous
place in the premises of the industrial
establishment at least seven days before the
actual date of retrenchment.

Rule 78. Re-employment of
retrenched workmen.--(1) At least ten
days before the date on which vacancies are
to be filled, the employer shall arrange for
the display on a notice board in a
conspicuous place in the premises of the
industrial establishment details of those
vacancies and shall also give intimation of
those vacancies by registered post to every
one of all the retrenched workmen eligible
to be considered thereof, to the address
254 INDIAN LAW REPORTS ALLAHABAD SERIES
given by him at the time of retrenchment or
at any time thereafter:

Provided that where the number
of such vacancies is less than the number of
retrenched workmen, it shall be sufficient if
intimation is given by the employer
individually to the senior-most retrenched
workmen in the list referred to in rule 77
the number of such senior-most workmen
being double the number of such vacancies:

Provided further that where the
vacancy is of a duration of less than one
month there shall be no obligation on the
employer to send intimation of such
vacancy to individual retrenched workmen:

Provided also that if a retrenched
workman, without sufficient cause being
shown in writing to the employer, does not
offer himself for re-employment on the date
or dates specified in the intimation sent to
him by the employer under this sub-rule,
the employer may not intimate to him the
vacancies that may be filled on any
subsequent occasion.

(2) Immediately after complying
with the provisions of sub-rule (1), the
employer shall also inform the trade unions
connected with the industrial establishment,
of the number of vacancies to be filled and
names of the retrenched workmen to whom
intimation has been sent under that subrule:

Provided that the provisions of
this sub-rule need not be complied with by
the employer in any case where intimation
is sent to every one of the workmen
mentioned in the list prepared under rule
77."

8. The submission of the learned
counsel for the Bank that the Reference
when was with regard to the opportunity as
was to be granted under section 25H, then
the Tribunal could not have given further
findings with regard to the provisions of
section 25G and Rules 77 and 78 of the
Central Rules is absolutely misplaced. I am
of the view that unless findings with regard
to the provisions of Rules 77 and 78 of the
Central Rules and with regard to the
provisions of section 25G are given, the
Tribunal could not have arrived at a proper
conclusion as to whether the provisions of
section 25H were violated. The Tribunal, in
the fitness of things, found that no proper
seniority list was maintained; no proper
opportunity to the respondents, as was
required to be given under the Rules, was
provided before regularising persons junior
to them and further the Tribunal correctly
found that the delay on the part of the
respondent-workmen was negligible. No
fault can also be found with regard to the
findings viz-a-viz. the application of the
SASTRY Award and bipartite agreement in
the case.

9. The workmen must have been
taken back in service as per the interim
orders of this Court and, therefore, I do not
find it appropriate to grant any back-wages
as since 2011 they must have been getting
their regular salaries.

10. Under such circumstances, I find
that no interference is warranted in both the
writ petitions. The writ petitions are,
therefore,
dismissed.
However,
if
in
pursuance of the interim orders, the
workmen have not been reinstated, then it
would be deemed that they were reinstated
on the date when the first interim order
dated 23.8.2011 was passed and all wages
which were payable to the workman viz-aviz. the date of the interim order dated
23.8.2011 would be granted to them. It may
be stated that all consequential benefits of
the award whereby the workmen were
required to be reinstated shall also be
provided to the respondent-workmen.
----------
6 All. Abul Hasan & Ors. Vs. Additional Commissioner (Second), Allahabad Division & Ors.
255
(2020)06ILR A255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-C No. 13490 of 2009

Abul Hasan & Ors. ...Petitioners
Versus
Additional
Commissioner
(Second),
Allahabad Division & Ors.. ...Respondents

Counsel for the Petitioners:
Sri M.N. Singh, Sri Mahesh Narain Singh

Counsel for the Respondents:
C.S.C., Sri Aun Haider, Sri Pramod Kumar
Pandey, Sri Rajiv Lochan Shukla, Sri
Salman Ahmad, Sri V.K. Singh

A. Civil Law - Code of Civil Procedure
,1908 - Section 5 - Order 9 Rule 13 - The
Limitation Act, 1963 - allowing application
under Order 9 Rule 13 of C.P.C. - setting
aside decree ex parte against defendant -
S.D.M committed jurisdictional error - no
proper application for condonation of delay -
rightly corrected by the revision court in
exercise of its revisional power - order of the
revision court based on settled principles of law
- no illegality or infirmity in the said order - if
the act of advocate is not in furtherance to
accomplish the purpose for which he has been
engaged by his client or against the statutory
provisions or rules, such an act of advocate
would not be binding upon the client (Director
of Elementary Education Odisha & Others Vs.
Pramod Kumar Sahoo 2019 (10) SCC 674).
(Para - 23,27)

Respondent no.2 instituted partition suit before
Sub-Divisional Magistrate - under Section 176
of U.P. Zamindari Abolition and Land Reforms
Act, 1950 - ex-parte judgement and decree
passed - preliminary decree prepared - quras
prepared by lekhpal - application under Order 9
Rule 13 of C.P.C. filed by the petitioners - delay
of four years after the exparte judgement - no
application under Section 5 of The Limitation
Act, 1963 filed by the petitioners - specific
objection raised by respondent no.2 - regarding
maintainability of application under 9 Rule 13 of
C.P.C. being barred by time - S.D.M. did not
consider objections - passed a cryptic order -
allowing the application under Order 9 Rule 13
of C.P.C with cost of Rs.300/- - objection of the
petitioners - once the cost of Rs.300/- is
accepted by counsel for respondent no.2, it is
not open to respondent no.2 to challenge the
said order. (Para - 14,15,24)

HELD:- Acceptance of cost by the advocate of the
respondent no.2 is not an act in furtherance to
accomplish the purpose for which he was engaged
and also in violation of statutory provision as the
application under Order 9 Rule 13 of C.P.C. was
incompetent in absence of delay condoantion
application and any order passed condoning the delay
in filing the aforesaid application - Such an act of
respondent no.2 would not debar him from
challenging the order of S.D.M. setting aside ex-parte
judgment and decree. (Para-27)

Petitions dismissed.(E-7)

List of Cases Cited:-

1.Balwant Singh (dead) Vs Jagdish Singh & ors., AIR
(2010) SC 3043

2. Ramlal & ors. Vs Rewa Coalfields Ltd., AIR (1962)
SC 361

3. Ramesh Chand Sharma Vs Udham Singh Kamal &
ors., (1999) 8 SCC 304

4. Himalayan Cooperative Group Housing Society Vs
Balwan Singh, (2015) 7 SCC 373

5. Director of Elementary Education Odisha & ors. Vs
Pramod Kumar Sahoo, (2019) 10 SCC 674

(Delivered by Hon'ble Saral Srivastava, J.)

Order on Civil Misc. Delay
Condonation Application No.268647 of
2012.