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Allahabad High Court · body

2015 DIGILAW 238 (ALL)

SHIV CHAND NIGAM v. STATE OF U. P.

2015-02-06

KARUNA NAND BAJPAYEE, RAKESH TIWARI

body2015
ORDER There is delay in filing the review application for which delay condonation application has been filed on behalf of the appellant. Cause shown is sufficient. The delay is condoned and delay condonation application is allowed and delay is condoned. Heard counsel for the parties and perused the record. This review is preferred challenging the judgement and order dated 1.9.2014 dismissing the special appeal against the order 4.7.2008 passed in Civil Misc. Writ Petition No. 52832 of 2006 dismissing the writ petition of the appellant/applicant. In the writ petition, applicant has challenged the order of his reversion to the basic salary and the adverse effect of reducing his salary. At the out set learned counsel for the appellant has informed the court that he has filed review application on the ground that the appellant/applicant could not make recovery as per target set up by the government at the relevant time while he working as Collection Amin, for the reasons that State Government by Government Order dated 2.9.2014 has declared the area as drought area and had also stayed the recovery up to 31.3. 2005. But the copy of the aforesaid government order was not available to him and as such could not file the same . Government order dated 2.9.2004 has come to his knowledge only after the dismissal of the appeal by the High Court on 1.9.2014 and he has filed the aforesaid order along with the review application in the special appeal. The petitioner has relied upon the judgement dated 1.9.2014 in this regard: "Some times they also resort corrupt means for not making recoveries by taking bribe from the persons upon whom revenue of state government is due. In such cases where a charge is levelled upon an employee or amin, as in the present case, of not making recovery upto the standard, at least the standard set up by the state government, he must either show to establish that the affected area was declared as a drought hit area or a flood affected area or any other reasonable explanation. He must also establish that other similarly situated Amins along with him also could not for these reasons make recovery because of the drought fixed by the state government. 5. However, in the instant case the petitioner has failed to establish any such thing. 6. He must also establish that other similarly situated Amins along with him also could not for these reasons make recovery because of the drought fixed by the state government. 5. However, in the instant case the petitioner has failed to establish any such thing. 6. The appellant was given a target for main recovery a sum of Rs. 2,17,016/- and misc. recovery of Rs. 1,33,014/- against which he recovered Rs. 1,359/- and Rs. 7000/- respectively. It is after holding an inquiry to the charge levelled against him, that he was found guilty of it and his appeal thereafter being considered by the appellate authority was rejected." Heard leaned counsel for the applicant/appellant and perused the record. The applicant has relied upon the order 41 Rule 27 for accepting the documents:- 27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence,whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or 2[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. He has also relied upon the judgement and order dated 1.9.2014 passed in Special Appeal in this regard:- "Some times they also resort corrupt means for not making recoveries by taking bribe from the persons upon whom revenue of state government is due. He has also relied upon the judgement and order dated 1.9.2014 passed in Special Appeal in this regard:- "Some times they also resort corrupt means for not making recoveries by taking bribe from the persons upon whom revenue of state government is due. In such cases where a charge is levelled upon an employee or Amin, as in the present case, of not making recovery up to the standard, at least the standard set up by the state government, he must either show to establish that the affected area was declared as a drought hit area or a flood affected area or any other reasonable explanation. He must also establish that other similarly situated Amins along with him also could not for these reasons make recovery because of the drought fixed by the state government. 5. However, in the instant case the petitioner has failed to establish any such thing. 6. The appellant was given a target for main recovery a sum of Rs. 2,17,016/- and misc. recovery of Rs. 1,33,014/- against which he recovered Rs. 1,359/- and Rs. 7000/- respectively. It is after holding an inquiry to the charge levelled against him, that he was found guilty of it and his appeal thereafter being considered by the appellate authority was rejected. " Standing counsel submits that additional document can be filed in the Special Appeal in conformity with the provision under Rule 41 Rule 1. After hearing learned counsel for the applicant it is apparent that order 47 Rule 1 would not apply, for the reason the additional document in Special Appeal can not be brought on record by circumventing the Order 41 Rule 1 which reads thus:- 1. Form of appeal- What to accompany memorandum.-(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. Form of appeal- What to accompany memorandum.-(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the [judgment]: [Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.] (2) Contents of memorandum.- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. [(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit, the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.] Admittedly the judgement of which the review is sought, clearly states that the petitioner had to show that the area was declared as drought area but no document was filed in the writ petition nor in the special appeal to the said effect and now it cannot be brought on record upon the review application under Order 41 Rule 27. Review application is accordingly dismissed. ——————