# Udai Shakar Trivar v. Ram Kalunwar

- **Citation:** (2006) 1 ILRA 294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-09
- **Case number:** Civil Misc. Writ Petition No.75895 of 2005
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udai-shakar-trivar-v-ram-kalunwar-40662
- **Pages:** 3

## Headnote

Sri G.S.D. Mishra
S.C.

Practice
of
Procedure-Defective
vakalatnama-appeal before-S.O.C. filed
jointly
by
47
persons-but
the
vakalatnama signed by only one personwhether the Appellate Authority ought to
have give some reasonable time to
remove the defect? Held 'yes' in view of
law laid down by the Apex court
repeated in S.L.P. No.22578 of 2002,
Udai Shakar Trivar vs. Ram Kalunwar
Prasad Singh.

Held: Para 5 and 6

In view of he law laid down by the Apex
court, this Court is of the view that that
some reasonable time may be granted to
the appellants in the appeal pending
before the Appellate authority to remove
the defect.

Accordingly, appellants in the Appeal
pending before the Appellate authority
are directed to remove the defect in the
Appeal within three weeks' from the
date of production of a certified copy of
this order. In case defect in the appeal is
1 All] M/s Kesar Enterprises Ltd. V. D.D.C., Bareilly and others
295
removed within three weeks, the appeal
shall be heard and decided in accordance
with law within three months thereafter.
Case law discussed:
Civil Appeal No. 22578 of 02 decided on
10.11.2005 fallowed

## Text

294 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
41. There cannot be any dispute that
there cannot be any estoppel against a
statute. However, where the demand is
being made under the terms of the
contract which specifically provides that
there would be no reduction or change in
the composition money even if the firing
has not been done in brick kiln or it has
been started late or for any other reason,
the petitioner is bound by the said clause
and he cannot be permitted to challenge
the same in view of the law laid down by
the Apex Court in the case of Har
Shanker and others, Narain Prasad and
others and Bharathi Knitting Co.
(supra). As we have already come to the
conclusion that the liability to pay the
composition money is not relatable to
actual sales at all, the principle laid down
by the Apex Court in the case of Gannon
Dunkerley & Co. (Madras) Ltd. (supra)
will not be attracted.

Conclusion :

42. In view of the foregoing
discussions, we are of the considered
opinion that the Division Bench in the
case of M/s Jaya Bhatta Udyog (supra)
subsequently followed by other Division
Benches in the case of M/s Sri Durga
Brick Field and Jai Sharma Int Udyog
(supra) lay down the correct law.

Let the matter be placed before the
appropriate Bench for further orders.
Opinion given accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No.75895 of 2005

M/s. Kesar Enterprises Limited

...Petitioner
Versus
Deputy
Director
of
Consolidation,
Bareilly and others
 ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh
Sri M.N. Singh
Sri Mahesh Narain Singh

Counsel for the Respondents:
Sri G.S.D. Mishra
S.C.

Practice
of
Procedure-Defective
vakalatnama-appeal before-S.O.C. filed
jointly
by
47
persons-but
the
vakalatnama signed by only one personwhether the Appellate Authority ought to
have give some reasonable time to
remove the defect? Held 'yes' in view of
law laid down by the Apex court
repeated in S.L.P. No.22578 of 2002,
Udai Shakar Trivar vs. Ram Kalunwar
Prasad Singh.

Held: Para 5 and 6

In view of he law laid down by the Apex
court, this Court is of the view that that
some reasonable time may be granted to
the appellants in the appeal pending
before the Appellate authority to remove
the defect.

Accordingly, appellants in the Appeal
pending before the Appellate authority
are directed to remove the defect in the
Appeal within three weeks' from the
date of production of a certified copy of
this order. In case defect in the appeal is
1 All] M/s Kesar Enterprises Ltd. V. D.D.C., Bareilly and others
295
removed within three weeks, the appeal
shall be heard and decided in accordance
with law within three months thereafter.
Case law discussed:
Civil Appeal No. 22578 of 02 decided on
10.11.2005 fallowed

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Heard learned counsel for the
petitioner
and
learned
counsel
for
Caveator.

2. Learned counsel for the petitioner
urged that against an order passed by the
Consolidation Officer, an appeal was
preferred by 15 persons, but Vakalatnama
was signed by only one person as such the
appeal on behalf of other persons was not
maintainable. The Appellate authority has
not taken into consideration this aspect
while entertaining the Appeal.

Considered arguments of learned
counsel for the party.

3. In view of the law laid down by
the Apex Court in the judgment rendered
in Civil Appeal No. 6701 of 2005
(Arising out of SLP(C) No. 22578 of
2002), Udav Shanker Trivar vs. Ram
Kalewar
Prasad
Singh
and another
decided on 10.11.2005, the appellants
before the Appellate Authority (Assistant
Settlement
Officer,
Consolidation,
Bareilly)
are
entitled
to
have
an
opportunity to get the defect removed.
 Paragraph-15 of the judgment of the
Apex Court is being reproduced below:-

"15. It is, thus, now well-settled that
any defect in signing the memorandum of
appeal or any defect in the authority of the
person signing the memorandum of
appeal, or the omission to file the
Vakalatnama executed by the appellant,
along with the appeal, will not invalidate
the memorandum of the appeal, if such
omission or defect is not deliberate and
the signing of the Appeal memorandum or
the
presentation
thereof
before
the
appellate court was with the knowledge
and authority of the appellant. Such
omission or defect being one relatable to
procedure,
it
can
subsequently
be
corrected. It is the duty of the Office to
verify whether the memorandum of
appeal was signed by the appellant or his
authorised agent or pleader holding
appropriate Vakalatnama. If the Office
does not point out such defect and the
appeal is accepted and proceeded with, it
cannot be rejected at the hearing of the
appeal merely by reason of such defect,
without giving an opportunity to the
appellant to rectify it. The requirement
that the appeal should be signed by the
appellant or his pleader (duly authorised
by a Vakalatnama executed by the
appellant) is, no doubt, mandatory. But it
does not mean that non-compliance
should result in automatic rejection of the
appeal without an opportunity to the
appellant to rectify the defect. If and
when the defect is noticed or pointed out,
the court should, either on an application
by the appellant or suo motu, permit the
appellant to rectify the defect by either
signing the memorandum of appeal or by
furnishing the Vakalatnama. It should also
be kept in view that if the pleader signing
the memorandum of appeal has appeared
for the party in the trial court, then he
need not present a fresh Vakalatnama
along with the memorandum of appeal, as
the Vakalatnama in his favour filed in the
trial court will be sufficient authority to
sign and present the memorandum of
appeal having regard to Rule 4 (2) of
Order 3 CPC, read with Explanation [c]
thereto. In such an event, a mere memo
296 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
referring to the authority given to him in
trial court may be sufficient. However,
filing a fresh Vakalatnama with the memo
of appeal will always be convenient to
facilitate the processing of the appeal by
the office."

4. Sri G.S.D. Misra, learned counsel
for Caveator, undertakes to remove the
defect in the appeal and prays for time for
the purpose.

5. In view of he law laid down by
the Apex court, this Court is of the view
that that some reasonable time may be
granted to the appellants in the appeal
pending before the Appellate authority to
remove the defect.

6. Accordingly, appellants in the
Appeal pending before the Appellate
authority are directed to remove the defect
in the Appeal within three weeks' from
the date of production of a certified copy
of this order. In case defect in the appeal
is removed within three weeks, the appeal
shall be heard and decided in accordance
with law within three months thereafter.

7. In case defect is not removed
within the stipulated time, the appellate
authority shall decide maintainability of
the appeal in accordance with law first.

8. With above directions, writ
petition is disposed of.

Certified copy of this order be issued
to learned counsel for the parties within
48 hours on payment of usual charges.
Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 30541 of 2002

Om Prakash

...Petitioner
Versus
District Inspector of School-II,Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri V.K. Srivastava
Sri C.K. Parekh

Counsel for the Respondents:
Smt. Sunita Agarwal
S.C.

U.P. Intermediate Education Act-1921Section-16-EE-absorbtion of retrenched
employee-petitioner appointed on the
post of Watchman-under leave gape
arrangement-purely on temporary basisafter joining of permanent incumbentthe services of petition come to an endheld-petitioner
being
temporary
employee without holding permanent
post-not entitled to be absorbed as
retrenched employee.

Held: Para 8 & 12

In my opinion, the petitioner was only a
temporary
employee
and
had
not
become a permanent employee nor was
he
holding
a
permanent
post.
Consequently, the petitioner was not
entitled to be absorbed as a retrenched
employee on a vacant post under Section
16-EE of the Act.

In view of the aforesaid, the petitioner
being appointed on a temporary post had
no right to claim an appointment as a
retrenched employee under Section 16EE of the Act.
Case law discussed:
1992 (Suppl.) (1) SCC-524