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SUSHIL KUMAR CHAUBE versus PARVESH KMAR SACHDEV & OTHERS

High Court of Judicature at Allahabad

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Sushil Kumar Chaube v. Parvesh Kmar Sachdev & Others - SPECIAL APPEAL DEFECTIVE No. - 549 of 2006 [2007] RD-AH 15903 (21 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 32

1. Civil Misc. Recall Application No. 42692 of 2007

IN

Special Appeal No. (352) of 2006

Dharmendra Pratap Singh

Vs.

Pravesh Kumar Sachdeva

& others

2. Civil Misc. Recall Application No. 42695 of 2007

IN

Special Appeal No. (377) of 2006

Satendra Kumar Singh

Vs.

Pravesh Kumar Sachdeva

& others

3. Civil Misc. Recall Application No. 42734 of 2007

IN

Special Appeal No. (549) of 2006

Sushil Kumar Chaube

Vs.

Pravesh Kumar Sachdeva

& others

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

These are the applications filed by applicants-appellants for recall of our orders dated 21.12.2006 whereby all the said appeals were dismissed by moreover similar orders passed respectively in each appeal, one of which passed in Special Appeal No. (549) of 2006 is as follows :

"Sri S.F.A Naqvi, learned counsel for the appellant states that the appellant has instructed him to withdraw this appeal with the liberty to avail such other remedy as available to him in law. The learned counsels appearing for the respondents have no objection to the aforesaid prayer.

The prayer is allowed.

The appeal is, therefore,dismissed as withdrawn with the above liberty."

Appellants filed a Special Leave Petition No. CC 837 of 2007 titled as Dharmendra Pratap Singh & others Vs. Pravesh Kumar Sachdeva & others before the Apex Court, but got the same dismissed as withdrawn on 5.2.2007. The order of the Apex Court is on record as Annexure-3 to the affidavit and is reproduced as under :

"Learned counsel for the petitioner states that the order dated 21.12.2006 in Special Appeal No. 549/2006 is not correctly recorded. If that be so, it is open to the petitioner to avail such remedy as is available in law and not to move this Court in SLP which is permitted to be withdrawn.

Hence the special leave petition is dismissed as withdrawn."

It appears for a perusal of the aforesaid order that the learned counsel for the appellants stated before the Apex Court that the order dated 21.12.2006 passed by this Court was not correctly recorded and in the circumstances, the Apex Court observed that it would be open to the appellants to avail such remedy as available in law and in view thereof the Special Leave Petition was dismissed as withdrawn. This Court when required the appellants to point out error which has crept in order dated 21.12.2006, could not point out anything and instead sought to place before us the averments made in Paragraphs-7, 8 and 9 of the affidavit, which, as contained in Recall application in Special Appeal No. (549) of 2006, is reproduced as under :

7.That as a division bench of this Hon'ble Court was of the view that alternative remedy available to the appellant is to approach the Hon'ble Apex Court separately or to join in S.L.P. No. 8315 of 2006 filed by petitioner of writ petition No. 76863 of 2005, although this fact was pointed out to the Hon'ble Court that portion of the judgment of learned Single Judge against which the appellant is aggrieved and had filed the present appeal can very well be challenged by means of filing special appeal under Chapter-VIII Rule-5 of Rules of this Hon'ble Court as the relevant portion of judgment of learned Single Judge was passed while exercising jurisdiction under Article 226 of the Constitution of India by issuing direction to take certain step which were not part of the proceedings before the commissioner, whose judgment was under challenge before Hon'ble Single Judge in the writ petition in question filed by petitioner of that writ petition.

8.That after passing of the order dt. 21.12.2006 by a division bench of this Hon'ble Court in the present appeal, the appellant along with other two persons namely Dharmendra Pratap Singh and Satendra Kumar Singh filed Special Leave Petition (Civil) No. CC-835 of 2007 challenging the judgment of learned Single Judge dt. 23.3.2006 passed in writ petition No. 76863 of 2005 (P.K. Sachdeva Vs. State of U.P. & others).

9.That it will be relevant here to point out that although before this Hon'ble Court Dharmendra Pratap Singh had filed special appeal No. 352 of 2006 and Satendra Kumar Singh had filed special appeal No. 377 of 2006 challenging the same judgment of learned Single Judge, which is subject matter of present appeal. On the date on which the appellant withdrew the appeal from this Hon'ble Court, other two special appeal No. 352/06 and 377/06 filed by Dharmendar Pratap Singh and Satendra Kumar Singh, were also been withdrawn and as such special leave petition No. CC-837 of 2007 was filed by all the three jointly before Hon'ble Apex Court."

However, from a perusal of the record, we find that the averments contained in the affidavit and in particular paragraphs 7, 8 and 9, which have been relied upon by learned counsel for the appellants do not correctly represent the proceedings and contain certain facts which are inconsistent to record. The Special Appeal No. (377) of 2006 filed by Satendra Kumar Singh came up before this Court as a fresh case on 6.7.2006 and despite repeated call, no counsel appeared to press the said appeal, hence, this Court passed following order on 6.7.2006 :

"List is revised. None appears on behalf of the appellant to press this appeal.

List in the next cause list."

The Special Appeal No. (352) of 2006 filed by Dharmendra Pratap Singh came up as a fresh one before the Bench consisting of Hon'ble B. S. Chauhan, J. and Hon'ble Dilip Gupta, J. on 5.7.2006 when on the statement made by learned counsel for the appellant, the Court passed the following order :

"It is pointed out by the Learned Counsel appearing for the parties that another matter arising out of the same Judgment is being heard today by the Bench presided over by Hon'ble S.R. Alam, J. It is desirable that this matter may also be heard by the same Bench.

The file may be sent immediately to the said Bench."

This appeal also came up before us on 6.7.2006 when on the request made by learned counsel for the appeallant, we passed following order :

"As prayed, put up this case on Monday i.e. 10.7.2006 as a fresh case."

Again on 10.7.2006 on the request made by learned counsel for the appellant, we passed following order :

"As prayed by Sri M.K.Gupta, learned counsel for the appellant, list this appeal in the next cause list along with Special Appeal No. 377 of 2006."

While the two appeals were pending as above, the third Special Appeal no. (549) of 2006 filed by Sri Sushil Kumar Chaube came up as fresh matter on 8.7.2006 before the Bench consisting of Hon'ble the Chief Justice and Hon'ble Ashok Bhushan, J. but it was released to be placed before another Bench and vide Hon'ble Chief Justice's order dated 11.8.2006 it was nominated to a Bench presided by one of us (Hon'ble S.R. Alam, J.). After nomination, the Special Appeal No. (549) of 2006 came up before this Bench on 17.8.2006 and the learned counsel for the appellant pointed out that this matter is similar to other two appeals and consequently the Bench passed the following order :

"Connect this appeal with Special Appeal No. 352 of 2006 and list in the next cause list."

It would be necessary to mention that all these appeals were filed through Sri M.K. Gupta, learned counsel appearing for the appellants. On 17.8.2006, the Special Appeal No. (352) of 2006 was also listed before this Bench but Sri Kushal Kant, learned counsel appearing for the respondents sought adjournment on the ground of illness and therefore the following order was passed in Special Appeal No. (352) of 2006 on 17.8.2006 :

"Sri Kushal Kant, learned counsel appearing for the respondents has sent illness slip. Therefore, let this appeal appear in the next cause list along with the connected Special Appeal."

Thereafter, all these appeal came to be listed before us on 9.10.2006 when Supplementary Affidavit was filed sworn by Sushil Kumar Chaube, Appellant in Special Appeal No. (549) of 2006 annexing a copy of the interim order dated 11.5.2006 passed by the Apex Court in Special Leave Petition No. 8315 of 2006 preferred by Pravesh Kumar Sachdeva against the judgment dated 23.3.2006 of the Hon'ble Single Judge in Writ Petition No. 76863 of 2005 whereagainst the present Special Appeals were filed before this Court. On the said date, Sri S.F.A. Naqvi, learned counsel appeared on behalf of the appellant and requested the Court to adjourn the matter for a week stating that auction-purchaser, who was a party in writ petition has already filed SLP before the Apex Court and accordingly the Court passed following order :

"Supplementary affidavit has been filed today on behalf of the appellant enclosing copy of the order of the Apex Court in SLP No. 8315 of 2006.

Sri S.F.A. Naqvi, learned counsel for the appellant submits that the auction purchaser, who was petitioner in the writ petition, has preferred SLP against the judgment dated 23.3.2006 wherein strictures have been given against the present appellant. He, therefore, submits that this matter be taken up after one week.

As prayed, list on 1.11.2006 peremptorily."

Thereafter, all these matters came up before us on 21.12.2006 on which date, on the statement made by learned counsels appearing for the appellants that they have been instructed to withdraw these appeals so as to enable the appellants to avail such remedy as available in law, we dismissed these appeal as withdrawn with the liberty as requested for. It is evident from the aforesaid proceedings that from the day one, the appeals were adjourned for one or the other reason on account of the learned counsel appearing for the appellant and it is the appellants themselves who placed before this Court the fact that a Special Leave Petition by auction purchaser has already been filed before the Apex Court and the higher Court is seized of the matter, since notices have been issued and an interim order with respect to deposit of cost has also been passed by the Apex Court. Perhaps the learned counsel for the appellants was aware of the fact that when a mater is pending before the higher Court, other court should not take up a matter involving the same issues and, therefore, after bringing the said fact to the notice of this Court that the Apex Court has already entertained Special Leave Petition preferred by the auction purchaser himself requested us to adjourn the matter for sometime and thereafter made a statement before us to dismiss these appeals in order to enable them to avail such remedy as available in law and on account of this statement, we had no option but to pass order accordingly. It is always open to the party, who has filed a case, to get it dismissed as withdrawn and normally in such matter, the Court does not look into further and apply its mind to any other aspect, legal or factual, involved in the matter. However, it appears that without looking into these proceedings, the appellants while filing SLP before the Apex Court made certain wrong statements and even made a statement that the order dismissing the appeal has not been recorded correctly, though when we enquired from learned counsel appearing for the appellant repeatedly to point out any discrepancy or error in our order dated 21.12.2006, he could not point out anything.

In this view of the matter, we do not find any occasion or reason to recall our order dated 21.12.2006 and the applications are, accordingly, rejected.

Dt. 21.9.2007

PS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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