Himanshu Sharma vs Apurva Chandra & Ors

Pramod Kumar Das, Member (A)

The background of the matter is that the applicant filed CP No. 64 of 2024 alleging non-compliance of the order passed in OA 536/2021 vide common order dated 19.05.2021. While the CP was pending, respondents issued order dated 08.10.2024 in pursuance of the aforesaid order dated 19.05.2021. Hence, this Bench vide order dated 06.12.2024 by placing reliance on the decision of the Hon'ble Apex Court in the case of J.S.Parihar Vs Ganpat Duggar and Ors, 1996 SCC (L&S) 1422, dropped the CP in holding that once the authority passed the order in pursuance of the order of the court, the basic ingredient for willful, intentional and deliberate violation of the order, so as to proceed in CP, ceased to exist. The applicant by filing MA No. 21/2024 on 08.01.2025 seeks to recall/modify the order dated 06.12.2024 passed by this Bench dropping the CP. Respondents filed their objection questioning the very maintainability of the MA No. 21/2025.

Heard. Perused the records.

We are reminded by the decision of the Hon'ble Apex Court in the case of Ajay Kumar Jain Vs the State of U.P. and another, 2024 INSC 958, wherein the Hon'ble Apex Court held that when proceedings stand terminated by final disposal, it is not open to the court to reopen the proceedings by means of the Misc. Application in respect of a matter, which provided a fresh cause of action and, if, this principle is not followed, there would be confusion and chaos and the finality of the proceedings would cease to have any meaning.

Further, this Bench came across with the decision dated 11 June, 2013 of the Full Bench of the Lucknow Bench of this Tribunal in OA No. 1111/2000 (Satyapal Singh Son of Sri Ganga ... Vs I..M.G. Khan), wherein it was held as under:

"14. A Division Bench of Hon'ble High Court, Allahabad consisting of Hon'ble Binod Kumar Roy and Hon'ble P.K. Jain, JJ in the case of New India Insurance Company Ltd. Vs. Smt. Bimla Devi and others reported in 1998 (33) ALR page 456- while following the aforesaid full bench of Shivragi (supra), it was observed that it is a settled law that appeal/ revision/ review are creation of statute and no litigant has got an inherent right to prefer appeal/ revision or review. It also referred to the decision of Hon'ble Apex Court in Harbhajan Singh (supra), wherein it has been clearly laid down that in absence of any power, review is impermissible.

A Division Bench of Hon'ble High Court of Judicature at Allahabad, Lucknow Bench has recently (by its order dated 17.1.2013 passed in Writ Petition No.66/2013 Mahavir Prasad Vs. CAT Lucknow an Others) upheld an order dated 13.9.2012 passed by CAT, Lucknow Bench in Civil Contempt Petition No. 22/2009 by observing that recall/review application is not maintainable. The Hon'ble High Court further observed that virtually recalling of the order dated 10.1.2012 passed by CAT, Lucknow Bench will amount to review its earlier decision which was passed with the findings on merit (as is the situation in the present case).

Therefore, unless provided under the Act, no application for review/recall can be moved. It was also specifically observed by the Hon'ble High Court that the Contempt of Court Act, 1971 does not contain any provision for review of a judgment.

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In view of the discussions made in the foregoing paragraphs, it is our considered view that recall application is not maintainable against an order passed in a contempt case decided on merits. We would like to add that Tribunal should refrain itself from dismissing a contempt case for default, particularly after issuance of show cause notice as discussed above. However, if such an order has been passed by a Tribunal, the absence of vesting/conferment of power of recall/review shall not come in the way of recalling because of such order being ab-initio void and nonest and it would be constitutional and legal obligation of a Tribunal to recall such an order as discussed hereinbefore........."

On the face of the above principle/law, when we posed specific question to the Ld. Counsel for the applicant to apprise under which provision, with the existing prayer, this MA is filed and maintainable in a contempt petition, which has already been dropped earlier, Ld. Counsel for the applicant sidetracking the main issue of maintainability of the MA, has reiterated the merit of the matter. Hence, in view of the law, quoted above, we are not convinced that the MA in the given form is maintainable in a dropped CP. Accordingly, the MA stands dismissed.