# Vindhyachal (Deceased) Plaintiff/ v. Sri Kalika (Deceased) & Ors

- **Citation:** (2022) 9 ILRA 423
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-22
- **Case number:** Second Appeal No. 2974 of 1982
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vindhyachal-deceased-plaintiff-v-sri-kalika-deceased-ors-49069
- **Pages:** 7

## Headnote

A. Civil Law - Second Appeal- Civil
Procedure Code, 1908 - Section 100 - Resjudicata-Section
11-Ingredients
ofsubstantial question of law-whether suit
barred
by
principle
of
res-judicatadiscussed-Court below rightly adjudge the
issue
of
res-judicata
against
the
plaintiff.(Para 1 to 21)

B. "Where persons litigate bona-fide in
respect of a public right or of a private
right claimed in common for themselves
and others, all persons interested in such
right shall, for the purposes of this
section be deemed to claim under the
persons so litigating." But it is only when
the conditions of Explanation VI are
satisfied that a decision in the litigation
will bind all persons interested in the
right litigated and the onus of proving
the want of bona fides in respect of the
previous litigation is on the party seeking
to avoid the decision. The words "public
right" have been added in Explanation VI
in view of the new Section 91 C.P.C. and
to prevent multiplicity of litigation in
respect of public right. In view of
Explanation VI it cannot be disputed that
Section 11 applies to public interest
litigation as well but it must be proved
that the previous litigation was the public
interest litigation not by way of a private
grievance. It has to be bonafide litigation
in respect of a right which is common and
is agitated in common with others. (Para
19)
The appeal is dismissed. (E-6)

List of Cases cited:

## Text

9 All. Vindhyachal (Deceased) Vs. Sri Kalika (Deceased) & Ors.
423

12. In view of the above, the appeal
fails and is dismissed. The show called
questions of law framed by the Insurance
Company are answered against it. In fact,
the substantial questions of law raised are
the questions of fact.

13. Interim relief, if any, shall stand
vacated forthwith.
----------
(2022) 9 ILRA 423
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Second Appeal No. 2974 of 1982

Vindhyachal (Deceased)
 ...Plaintiff/Appellant
Versus
Sri Kalika (Deceased) & Ors.
 ...Defendants/Respondents

Counsel for the Appellant:
Sri Kamlesh Kumar Kanojiya, Sri Bachchu
Lal Yadav, Sri Kamlesh Kumar Kanojiya

Counsel for the Respondents:
Sri S.P. Tripathi, Sri Gautam Chaudhary, Sri
Prem Shanker Prasad, Sri Rishikesh Pati
Tripathi, Sri Suresh Chandra Pandey

A. Civil Law - Second Appeal- Civil
Procedure Code, 1908 - Section 100 - Resjudicata-Section
11-Ingredients
ofsubstantial question of law-whether suit
barred
by
principle
of
res-judicatadiscussed-Court below rightly adjudge the
issue
of
res-judicata
against
the
plaintiff.(Para 1 to 21)

B. "Where persons litigate bona-fide in
respect of a public right or of a private
right claimed in common for themselves
and others, all persons interested in such
right shall, for the purposes of this
section be deemed to claim under the
persons so litigating." But it is only when
the conditions of Explanation VI are
satisfied that a decision in the litigation
will bind all persons interested in the
right litigated and the onus of proving
the want of bona fides in respect of the
previous litigation is on the party seeking
to avoid the decision. The words "public
right" have been added in Explanation VI
in view of the new Section 91 C.P.C. and
to prevent multiplicity of litigation in
respect of public right. In view of
Explanation VI it cannot be disputed that
Section 11 applies to public interest
litigation as well but it must be proved
that the previous litigation was the public
interest litigation not by way of a private
grievance. It has to be bonafide litigation
in respect of a right which is common and
is agitated in common with others. (Para
19)
The appeal is dismissed. (E-6)

List of Cases cited:

1. Forward Construction Co. Vs Prabhai Mandal
Andheri & ors.

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. B.L. Yadav and Mr.
K.K. Kanojiya, learned counsel for the
appellant and Mr. Prem Shanker Prasad,
learned counsel for the respondent.

2. This is plaintiff's second appeal
under Section 100 of Civil Procedure Code
against the judgment and decree dated
07.08.1982 passed in Civil Appeal No.153
of 1980 arising out of original suit No.880
of 1976.

3. The present second appeal was
admitted on 21.07.1983 but substantial
question was not framed at that time.
424 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Learned counsel for the appellant is
pressing the only substantial question of
law which has been framed by him in his
memo of Second Appeal, accordingly, this
appeal shall be heard on following
substantial question of law:

1.
"Whether
judgment
and
decree in a suit between the father of the
appellant and some other defendant, who
is defendant in the present suit about the
same land, which is ancestral and not self
acquired property of the father of the
appellant, principle of res-judicata will
apply or not?"

5. Both parties agreed that second
appeal be heard and disposed of on the
substantial question of law as framed by
this Court today itself.

6. Plaint in brief is that plaintiff's
house and Sahan is situated in plot No.998
Shikkimi Plot Nos. 248, 249, 250, 251
which is ancestral house and Sahan of the
plaintiff; village in question is partitioned
village; plaintiff's grand father Badloo was
alive at the time of partition; one Doodh
Nath brother of Badloo had died issueless
accordingly, Badloo came in possession on
the house and Sahan of Doodh Nath.
Shikkimi No.248 was recorded as parti but
plaintiff's grand father established his
Sahan over the same with the permission of
zamindar and the same is being used in the
same manner till date. Shikkimi No.248
was in the shape of Banjar and abadi, as
such it was recorded as Banjar in order to
avoid any difficulty plaintiff got the
settlement of the same from Gaon Sahba.
Plaintiff was born before the date of vesting
and he was living separate from his father
as such father was impleaded as defendant
IInd set. Defendant Ist set put a palani in
the disputed land 2-3 months before the
institution of the suit and plaintiff reside
outside due to employment. Plaintiff
requested the defendant Ist set to remove
palani and ghoora etc. when plaintiff came
back to his home defendant Ist set did not
pay any attention to the request, hence the
suit.

7. Defendant denied the plaint
allegation and alleged in his additional
statement that plaintiff and defendant No.6
are son and father and reside together for
all purposes. He further alleged that in
respect to disputed property plaintiff's
father who is defendant No.6 (Naurangi)
instituted a suit No.687 of 1967 in the court
of Munsif IIIrd Deoria against defendant Ist
and their predecessor in interest which was
dismissed by trial court and the Civil
Appeal filed before District Judge Deoria
was also dismissed, hence present suit in
respect of same property is barred by
principle of res-judicata. He further alleged
that suit is also barred by principle of
estoppal and acquiescence. He further
alleged that property has been settled with
defendant Ist set under Section-9 of
U.P.Z.A. & L.R. Act as such suit filed by
plaintiff is frivolous and is liable to be
dismissed.

8. Plaintiff and Defendant Ist set
adduced oral and documentary evidences in
support of their. Defendant Ist filed
judgment and decree of suit No. 687 of
1967 and Civil Appeal No. 290 of 1971 as
well as the map prepared in suit No.687 of
1967 in order to demonstrate that property
in dispute in both the cases are same and
identical.

9. Before trial court 8 issues were
framed in which issue No.3 was whether
suit is barred by res-judicata as alleged in
para No.5 of the written statement.
9 All. Vindhyachal (Deceased) Vs. Sri Kalika (Deceased) & Ors.
425

10. Trial Court considering the each
and every oral and documentary evidence,
came to conclusion that present suit filed
by plaintiff is barred by res-judicata in view
of judgment and decree passed in earlier
suit No.687 of 1967 in respect of same
property.

11. While deciding the issue No.3
trial Court has discussed about the oral
statement of P.W.1 (Plaintiff himself) who
in his examination-in-chief admit that he
came to know about the suit No.687 of
1967 about 5-6 years before but in his
cross-examination he denied about the
knowledge of Suit No.687 of 1967
accordingly trial court recorded finding that
plaintiff is making false statement as trial
court while considering the documentary
evidence relating to Suit No.687 of 1967
recorded finding that property of earlier
Suit No.687 of 1967 as well as present suit
is same and identical. Accordingly issue
No.3 was decided against the plaintiff and
in favour of the defendant Ist set. Other
issues were decided accordingly.

12. Lower Appellate Court confirmed
the finding of fact recorded by trial court
on issue No.3 that present suit is barred by
principle of res-judicata due to decree
passed in suit No.687 of 1967 filed by
plaintiff's grand father in respect to same
property.

13. Counsel for the appellant submitted
that present suit is not barred by principle of
res-judicata as judgment and decree passed in
earlier suit No.687 of 1967 was filed by
plaintiff's father, although plaintiff and
plaintiff's father were residing separate since
long. He further submitted that property in
dispute is ancestral property of the plaintiff.
He further submitted that property in dispute
has been settled with the plaintiff and his
father under Section 9 of U.P.Z.A.& L.R. Act
accordingly
counsel
for
the
appellant
submitted that judgement and decree passed
by courts below be set aside.

14. On the other hand, learned counsel
for the respondent Ist set submitted that
property in dispute of present suit is same and
identical to the property in dispute of earlier
suit No.687 of 1967 filed by plaintiff's father,
as such present suit is barred by principle of
res-judicata. He further submitted that
concurrent finding of fact have been recorded
by trial court as well as by lower appellate
court that present suit is barred by principle
of res-judicata, as such no interference is
required and second appeal is liable to be
dismissed.

15. Heard Counsel for the parties and
perused the record on the substantial question
of law as quoted above.

16. In order to appreciate the argument
advanced by learned cousnel for the parties as
well as to consider the substantial question of
law as framed the perusal of section-11 of
Civil Procedure Code will be necessary,
which is as follows:

"CPC Section 11. Res judicata.

No Court shall try any suit or
issue in which the matter directly and
substantially in issue has been directly
and substantially in issue in a former suit
between the same parties, or between
parties under whom they or any of them
claim, litigating under the same title, in a
Court competent to try such subsequent
suit or the suit in which such issue has
been subsequently raised, and has been
heard and finally decided by such Court.

Explanation I- The expression
"former suit" shall denote a suit which
has been decided prior to the suit in
426 INDIAN LAW REPORTS ALLAHABAD SERIES
question whether or not it was instituted
prior thereto.

Explanation
II.-
For
the
purposes of this section, the competence of
a Court shall be determined irrespective of
any provisions as to a right of appeal from
the decision of such Court.

Explanation III.- The matter
above referred to must in the former suit
have been alleged by one party and either
denied or admitted, expressly or impliedly,
by the other.

Explanation IV.- Any matter
which might and ought to have been made
ground of defence or attack in such
former suit shall be deemed to have been a
matter directly and substantially in issue
in such suit.

Explanation
V.-
Any
relief
claimed in the plaint, which is not
expressly granted by the decree, shall, for
the purposes of this section, be deemed to
have been refused.

Explanation VI- Where persons
litigate bona fide in respect of public right
or of a private right claimed in common
for themselves and others, all persons
interested in such right shall, for the
purposes of this section, be deemed to
claim under the persons so litigating.

1[Explanation
VII.-
The
provisions of this section shall apply to a
proceeding for the execution of a decree
and reference in this section to any suit,
issue or former suit shall be construed as
references, respectively, to proceedings for
the execution of the decree, question
arising in such proceeding and a former
proceeding for the execution of that
decree.

"Explanation
VIII.-An
issue
heard and finally decided by a Court of
limited jurisdiction, competent to decide
such issue, shall operate as res judicata in
as subsequent suit, notwithstanding that
such Court of limited jurisdiction was not
competent to try such subsequent suit or
the suit in which such issue has been
subsequently raised.]"

17. The trial Court while deciding the
issue No.3 relating to res-judicata as held
as follows:

"वाद पद सं० 3 : च ंकि यह वाद पद
कवकिि वाद पद है और इसिे किर्णयि पर ही
प्रस्तुत वाद िा पररक्षर् आिाररत है अतएंव मैं
इसे पहले कववेकचत िरता हूँ।

वादी कवन्ध्याचल िे अपिे मौखिि
साक्ष्य बतौर पी.डब्ल.1 में अपिी आयु 41 वर्ण
कलिाई है अतएंव यह स्पष्ट है कि कववाकदत भ कम
पर उसे स्तत्व प र्ण जमीदारी उन्म लि कहन्द
पाररवाररि कवकि िे प्राकविाि ं िे अन्तर्णत प्राप्त
ह सिता था। उस दशा मेेेें
 उसिा अपिे कपता
िे साथ स्वतंत्र स्वत्व कववाकदत भ कम पर ह सिता
था इसमें संदेह िहीं है। परन्तु जहां ति वाद
संख्या 687 सि् 67 िा प्रश्न है वादी इस तथ्य ि
स्वीिार त िहीं िरता पर अपिे मौखिि साक्ष्य
में यह िहता है कि मुझे ि ई जाििारी िहीं है
कि मेरे कपता िें िभी ि ई दावा किया था। इस
तथ्य ि वह अपिे ब्याि िास में ही स्वीिार
िरता है कि उसे इस प्रिार िा दावा ह िे िी
जाििारी 5-6 साल पहले हुई है। इस प्रिार उसे
इस प्रिार िी जाििारी सि् 1974-75 में हुई।
वाद पत्र सि् 76 िा है और प्रस्तुत वाद कदिांि
7/9/76 ि संखथथत किया र्या पर वादी िे अपिे
वाद पत्र में इस तथ्य िा िहीं उल्लेि िहीं किया
अकपतु यह िहा जा सिता है कि उसिे इस तथ्य
ि किपाया।

अलावा इसिे उसिे अपिे वाद पत्र या
मौखिि साक्ष्य में यह िहीं िही िहा कि वह िब
से अपिे कपता से अलर् रह रहा है। वाद सं० 687
सि् 67 आज से 13 साल प वण संखथथत हुआ और
वादी द्वारा दौराि मौखिि साक्ष्य बताई र्यी आयु
41 वर्ण ि सही माििे पर यह प्रतीत ह ता है कि
उक्त वाद संखथथत ह िे पर उसिी आयु 28 साल
थी और अब अवथथा में यह लर्भर् अकवश्वसकिय
है कि कपता द्वारा लाये र्ये वाद िी जाििारी
9 All. Vindhyachal (Deceased) Vs. Sri Kalika (Deceased) & Ors.
427
वादी ि ि ह । उक्त वाद िा (सम्भवतः) अखन्तम
किपटारा 28/4/72 ि हुआ जब माििीय कजला
जज मह दय िे यहां से उक्त वाद संबंकि कसकवल
अपील िम्बर 29 सि् 1971 िौरंर्ी प्रकत श्रीमकत
तेतरी वर्ैरह िाररज हुई। इस प्रिार उक्त वाद 5
वर्ो ति लडा र्या। इतिे लम्बे समय ति लडे
र्ये वाद िे कवर्य में वादी ि ि ई जाििारी
िहीं थी यह िदाकप कवश्विीय प्रतीत िहीं ह ता।

जहां ति द ि ं वाद ं कि कववाकदत
भ कम िा प्रश्न है िार्ज सं० 481र् ज वाद सं० 687
सि् 67 िवरंर्ी प्रकत श्रीमकत तेतरी वर्ैरह
बअदालत III Add. Munsif मह दय, देवररया िा
किर्णय है, से यह स्पष्ट ह जाता है कि उक्त वाद में
कशिमी िं० 248पर ही वादी िे कपता िे अिुत र्
चाहा था और उक्त वाद में भी प्रकतवादीर्र् िे
यही अकभिकथत किया था कि कववाकदत कशिमी
िं० 248िभी वादी (उक्त वादी) िा िहीं रहा और
इस पर प्रकतवादीर्र् िी िारी है और उक्त वाद
में यह तथ्य पाया र्या कि िौरंर्ी िा कशिमी िं०
248 पर ि ई स्वत्व प्राप्त िहीं है। अतएंव यह
कसध्य ह जाता है कि द ि ं वाद ं िी कववाकदत
भ कम एि ही है।

अब वादी यह स्वंय िह िर आता है
कि वह कहन्द कवकि िे अिुसार ि पासणिरी राइट
िे रूप में कववाकदत भ कम िा स्वामी है। उसिी
पैदाइश से प वण ह इस भ कम पर उसिे कपता ि
उसी रूप में स्वत्व प्राप्त ह र्या ह र्ा। पर वाद
सं० 687/67 में जब उसिे कपता िा ही स्वत्व और
अध्यासि द ि ं अस्वीिृकत ह र्या त वादी ि
स्वत्व और अध्यासि प्राप्त ह िा अत्यन्त असम्भव
ह जाता है।

जहां ति वादी कि कवश्वसकियता िा
प्रश्न है उसिे मौखिि साक्ष्य िा कववेचि
आवश्यि है। उसिे अपिे ब्याि िास में िहा है
कि उसे अपिे कपता द्वारा संखथथत वाद िी
जाििारी 5-6 साल पहले हुई पर अपिे प्रकत
परीक्षर् में उसिे इन्कार किया कि उसे ऐसे
किसी वाद िी जाििारी है। उसिे यहां ति स्पष्ट
िहा कि आज ति इस कवर्य में िुि िहीं
मालुम। इससे यह स्पष्ट ह जाता है कि वादी
असत्य िथि िर रहा है।

कवर्य प्रांर्न्याय से हटिर भी वादी
िी अकवश्वशसकियता िे अिेि उदाहरर् है।
अपिे ब्याि िास में वह िहता है कि कववाकदत
भ कम अब्ब राम जमीदार से उििे आजा िे ली थी
पर अपिे प्रकत परीक्षर् में िहता है कि मैं अपिे
कपता से ब लता िही अतएंव यह जमीि उिि
िैसे कमली मैिें प िा िहीं। उसिे अपिे
प्रकतपरीक्षर् में यह भी िहा है कि वह सि् 1967
से 1971 िे बीच िम िम से िम 4 बार घर र्या
ह र्ा पर यह भी िहता है कि उसिे बाल-बच् ं िे
किसी मुिदमें िे बारे में िहीं बताया। वाद सं०
687 सि् 67 में िक्शा बिािे हेतु विील आयुक्त
र्ये थे और उििा बिाया हुआ िक्शा 471र्2
कदिांि 15/2/70 िा है। इस िक्शे ि बिािे हेतु
िकमश्नर मह दय मौिे पर अवश्य र्ये ह र्ें। िाप
ज ि भी हुई ह र्ी और इसिी जाििारी भी
िरीब-िरीब सभी र्ांव िे ल र् ं ि ह र्यी
ह र्ी। ऐसी दशा में वादी िे घर जािे पर उसे इस
तथ्य िी जाििारी िहीं ह िा असम्भव और
सवणथा अस्वभाकवि प्रतीत ह ता है।

उपर क्त समस्त चचाण से यह प्रर्ट
ह ता है कि वादी िा यह िहिा कि उसे वाद सं०
687 सि् 67 िी ि ई जाििारी िही थी सवणथा
असत्य है। इस िारर् से वाद सं० 687 सि् 67
उसिे कवरूद्ध Res Judicata है और यह वाद
िारा-11 दीवािी प्रकिया संकहता से बाकित है।

वाद यह तद्िुसार वादी िे कवरूद्ध
तथा प्रकतवाकदर्र् प्रथमपक्ष िे पक्ष में किकर्णत
किया जाता है।

वाद पद सं०2, 4, 5 व 6 इि वाद पद
पर में चचाण आवश्यि िहीं समझता क् ंकि वाद
पद सं०3 िी चचाण से यही स्पष्ट ह र्या है कि वाद
िारा-11 दीवािी प्रकिया संकहता से वाकित है।"

18. Trial Court while deciding the
issue No.3 has taken into consideration the
oral evidence as well as documentary
evidences adduced by the parties. In the
oral evidence statement in chief of P.W.1
will be relevant where he stated that he
came to know about the judgment and
decree passed in suit No.687 of 1967, 5-6
years before although in cross examination
he denied knowledge about the judgment
and decree passed in suit No.687 of 1967,
428 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial court came to conclusion that
pliantiff is stating wrong fact about the
judgment and decree passed in suit No.687
of 1967. Trial Court further examined the
judgment and decree as well as the map
prepared in the suit and came to the
conclusion that property in earlier No.687
of 1967 as well as in the present suit is
same and identical. Trial court also
recorded finding that according to plaint
allegation plaintiff states that according to
Hindu law plaintiff is owner of the disputed
property having coparcenary right in the
property as such the right decided in favour
or against the plaintiff's father will bind
plaintiff also. Considering each and every
aspect trial court decided the issue No.3
against the plaintiff and recorded finding of
fact that present suit is barred by principle
of res-judicata and is barred by section-11
of Civil Procedure Code.

19. Hon'ble Apex Court in the case of
Forward Construction Co. Vs. Prabhat
Mandal Andheri and other interpreted the
principle
of
Res-judicata
specially
explanation- IV to VI of Section 11 of Civil
Procedure Code paragaraph Nos 19, 20 and
21 of the judgment rendered in Forward
Construction Co. (Supra) are as follows:

The
second
question
for
consideration is whether the present writ
petition is barred by res judicata. This plea
has been negatived by the High Court for
two reasons: (1) that in the earlier writ
petition the validity of the permission
granted under r.4(a)(i) of the Development
Control Rules was not in issue; and (2) that
the earlier writ petition filed by Shri
Thakkar was not a bona fide one in as
much as he was put up by some disgruntled
builder, namely, of M/s. Western Builders.

"19. The second question for
consideration is whether the present writ
petition is barred by res judicata. This plea
has been negatived by the High Court for
two reasons: (1) that in the earlier writ
petition the validity of the permission
granted
under
r.4(a)(i)
of
the
Development Control Rules was not in
issue; and (2) that the earlier writ petition
filed by Shri Thakkar was not a bona fide
one in as much as he was put up by some
disgruntled builder, namely, of M/s.
Western Builders.

20. So far as the first reason is
concerned, the High Court in our opinion
was not right in holding that the earlier
judgment would not operate as res
judicata as one of the grounds taken in
the present petition was conspicuous by its
absence
in
the
earlier
petition.
Explanation IV to S.11 C.P.C. provides
that any matter which might and ought to
have been made ground of defence or
attack in such former suit shall be deemed
to have been a matter directly and
substantially in issue in such suit. An
adjudication is conclusive and final not
only as to the actual matter determined
but as to every other matter which the
parties might and ought to have litigated
and have had it decided as incidental to or
essentially connected with the subject
matter of the litigation and every matter
coming with the legitimate purview of the
original action both in respect of the
matters of claim or defence. The principle
underlying Explanation IV is that where
the parties have had an opportunity of
controverting a matter that should be
taken to be the same thing as if the matter
had been actually controverted and
decided. It is true that where a matter has
been constructively in issue it cannot be
said to have been actually heard and
decided. It could only be deemed to have
been heard and decided. The first reason,
therefore, has absolutely no force.
9 All. Ashish Pandey & Ors. Vs. State of U.P. & Ors.
429

21. The second reason given by
the High Court however, holds good.
Explanation VI to S.11 provides :

"Where persons litigate bona
fide in respect of a public right or of a
private right claimed in common for
themselves
and
others,
all
persons
interested in such right shall, for the
purposes of this section be deemed to
claim under the persons so litigating."

But
it
is
only
when
the
conditions of Explanation VI are satisfied
that a decision in the litigation will bind
all persons interested in the right litigated
and the onus of proving the want of bona
fides in respect of the previous litigation is
on the party seeking to avoid the decision.
The words "public right" have been added
in Explanation VI in view of the new S.91
C.P.C. and to prevent multiplicity of
litigation in respect of public right. In
view of Explanation VI it cannot be
disputed that S.11 applies to public
interest litigation as well but it must be
proved that the previous litigation was the
public interest litigation not by way of a
private grievance. It has to be a bonafide
litigation in respect of a right which is
common and is agitated in common with
others.

20. Judgment and decree of trial court
dated 21.04.1980 has been maintained by
lower appellate Court by dismissing civil
appeal by judgment and decree dated
07.08.1982
considering
the
point
of
section-11 of Civil Procedure Code.

21. Considering the finding recorded
by courts below ratio of law laid down by
Apex Court as well as from the perusal of
records it is very much clear that present
suit filed by plaintiff is barred by principle
of res-judicata, the substantial question of
law framed is answered accordingly.

21. In the result, it cannot be said that
the courts below have erred in deciding the
issue of res-judicata against the plaintiff.
The appeal lacks merit and is liable to be
dismissed. Appeal is hereby dismissed.
----------
(2022) 9 ILRA 429
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2022

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ-A No. 12015 of 2016

Ashish Pandey & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rakesh Kumar Singh, Pramendra Kumar
Singh, Ravi Shanker Tripathi

Counsel for the Respondents:
C.S.C., Dr. L.P. Mishra, Gaurav Mehrotra,
Narendra Kumar Pandey, Prafulla Tiwari,
Sameer Kalia, Sidharth Verma

A. Service Law - Selection - Uttar Pradesh
Group-C Direct recruitment (Mode and
Procedure) Rules-2015 - Rule 8 (1) -
Expression prior approval and approval
connotes different situation, where a
statue uses the term prior approval
anything done without the prior approval,
is nullity. However, where a stature
employs expression approval, in such
cases subsequent rectification can make
the act valid. (Para 15 to 17)

In the present case, it is apparent that the 20
maximum marks of the interview prescribed by
the UPSSSC on 03.02.2016 has been approved
by the Government on 10.06.2016, therefore
the condition of Rule 8(1) of Rules of 2015
stands fulfilled, therefore it cannot be said that
the selection has been held in violation of the
said rule. (Para 18)