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Allahabad High Court · body

2010 DIGILAW 1406 (ALL)

RAJESH CHANDRA GUPTA v. STATE OF U. P.

2010-04-29

RAJ MANI CHAUHAN, VIJAY MANOHAR SAHAI

body2010
JUDGMENT By the Court.—Heard Sri Rahul Shripat, learned counsel for the appellants and Sri Gautam Baghel, Advocate holding brief of Sri P.S.Baghel for the respondents. 2. Civil Misc. Writ Petition No. 25438 of 2007 of the appellant was dismissed by Hon. Mr. Jusdtice V.K.Shukla on 25.5.2007. The petitioners filed Restoration/Review Application. It appears that on the date when the matter was listed Hon. Mr. Justice V.K.Shukla was not available and, therefore, Hon. Mr. Justice Pankaj Mithal heard and dismissed the said application by order dated 22.4.2008. 3. For ready reference Rules 12 and 13 of Chapter V of The Allahabad High Court Rules, 1952 is quoted below : “12. Application for review.—An application for the review of a judgment shall be presented to the Registrar, who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such judgment was delivered alongwith an office report as to limitation and sufficiency of Court fees. If such Judge or Judges or any one or more of such Judges be no longer attached to the Court, the application shall be laid before the Chief Justice who shall having regard to the provisions of Rule 5 of Order XLVII of the Code, nominate a Bench for the hearing of such applications: Provided that an application for the review of a judgment of one Judge who is precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a single Judge and that an application for the review of a judgment of two or more Judges, any one or more of whom is or are precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a Bench consisting of the same or a greater number of Judges. Explanation—For the purposes of this rule the expression ‘no longer attached to the Court’ shall be deemed to include absence from the permanent place of sitting on account of the directions given under Rule 17 of this chapter, illness or any other cause.” “13. Explanation—For the purposes of this rule the expression ‘no longer attached to the Court’ shall be deemed to include absence from the permanent place of sitting on account of the directions given under Rule 17 of this chapter, illness or any other cause.” “13. Subsequent application on the same subject to be heard by the same Bench.—No application to the same effect or with the same object as a previous application upon which a Bench has passed any order other than an order of reference to another Judge or Judges, shall, except by way of appeal, ordinarily be heard by any other Bench. The application when presented by or on behalf of the person by whom or on whose behalf such previous application was made shall give the necessary particulars of such previous application, the nature and the date of the order passed thereon and the name or names of the Judges or Judges by whom such order was passed.” 4. In view of the aforesaid rules since the writ petition was dismissed by Hon. V.K. Shukla, J only he had the jurisdiction to hear the Restoration/Review Application. Even if Hon. Mr. Justice V.K. Shukla was sitting at Lucknow Bench even then after his return from Lucknow he had the jurisdiction to hear the application as per proviso to the aforesaid Rule. If an application for review of the judgment could not be heard by the Hon’ble Judge due to his absence at least for six months then it can be heard and disposed of by another Judge. Admittedly during the period of six months Hon. Mr. Justice V.K. Shukla came back to Allahabad. Therefore, only Hon. Mr. Justice V.K. Shukla had the jurisdiction to hear the said application and the order passed thereon by Hon. Mr. Justice Pankaj Mithal is without jurisdiction in view of the aforesaid rules. 5. Rule 7 of Chapter VI lays down the rule with regard to part heard cases, as under : “7. Part-heard cases.—A case which remains part-heard at the end of the day shall, unless otherwise ordered by the Judge or Judges concerned, be taken up first after miscellaneous cases, if any, in the cause list for the day on which such Judge or Judges next sit. Part-heard cases.—A case which remains part-heard at the end of the day shall, unless otherwise ordered by the Judge or Judges concerned, be taken up first after miscellaneous cases, if any, in the cause list for the day on which such Judge or Judges next sit. Every part-heard case entered in the list may, unless the Bench orders otherwise, be proceeded with whether any Advocate appearing in the case is present or no: Provided that if any part-heard case cannot be heard for more than two months on account of the absence of any Judge or Judges constituting the Bench, the Chief Justice may order such part-heard case to be laid before any other Judge or Judges to be heard afresh.” 6. From a perusal of Rule 7 and the proviso contained therein it is clear that if any part-heard case cannot be heard for more than two months on account of absence of a Judge then the Chief Justice has power to pass an order for directing the matter to be laid before another Bench so that the matter may be heard afresh, but this rule applies only if the Judge is absent for a period of two months or more. In this case Hon. Mr. Justice V.K.Shukla came back from Lucknow within the period of two months, therefore, only he had the jurisdiction to hear the matter. 7. The standing counsel has placed reliance on the order dated 5.7.2007 passed by the then Chief Justice which is extracted below : “All part heard and tied up cases of the Hon’ble Judges, who have been transferred permanently or till further order/retired and are no longer available at the place of sitting, shall be treated as released under the proviso to Rule 7 of Chapter VI of the Rules of the Court, 1952 and may be listed for disposal before the appropriate Benches.” 8. To us it appears that the order dated 5.7.2007 is in violation of the provisions of Rules 12 and 13 of Chapter V and Rule 7 of Chapter VI of the Allahabad High Court Rules. The order dated 5.7.2007 cannot be treated to have amended the High Court Rules, and it being in violation of the rules is liable to be ignored. 9. Another order has been placed by learned Standing Counsel wherein the order dated 5.12.2007 has been considered by the Chief Justice on 23.3.2009. The order dated 5.7.2007 cannot be treated to have amended the High Court Rules, and it being in violation of the rules is liable to be ignored. 9. Another order has been placed by learned Standing Counsel wherein the order dated 5.12.2007 has been considered by the Chief Justice on 23.3.2009. The clarification was sought by the office to the effect that the matters which have been dismissed in default were treated as tied up cases with Hon'ble Judges or Bench which dismissed the case in default and were to be placed before the same Bench as prior to order dated 5.12.2007 the restoration applications were listed before the same Bench which had dismissed the case. Hon’ble the Chief Justice considered the matter and passed an order on 23.3.2009 to the effect that earlier practice be followed meaning thereby The Allahabad High Court Rules have to be followed. Therefore, the order passed by learned single Judge dismissing the restoration/review application cannot be maintained. 10. In view of the aforesaid discussions, the appeal succeeds and is allowed. The order dated 22.4.2008 passed by learned single Judge is set aside. The matter is remanded back to Hon. Mr. Justice V.K.Shukla for decision afresh on Restoration/Review application with a request for early disposal. ————