Hari Singh Vs. State of U.P. and Others

Hari Singh vs State of U.P. and Others

Type Court Judgment Court Allahabad Decided Mar 03, 1998

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Citation: sooperkanoon.com/474598
Court: Allahabad High Court
Judge: D.K. Seth, J.
Decided On: Mar 03, 1998
Case Number: C.M.W.P. No. 9391 of 1981
Subject: Civil

Case Summary

AI-generated summary - not the official court judgment text.

Civil - dismissal of appeal - Rule 56 of Arms Rules, 1962 - appeal dismissed on grounds of default - application filed for restoration also rejected by concerned authority - no opportunity to be heard given to appellant - rejection of restoration not justified and appeal to be restored for proper consideration. -

Key legal issue: Civil
Acts & sections: Arms Rules, 1962 - Rule 56

Parties & Advocates

Appellant / Petitioner

Hari Singh

Advocate J.S. Tomar, Adv.

Respondent

State of U.P. and Others

Advocate S.C.

Legal References

Acts: Arms Rules, 1962 - Rule 56
Reported In: 1998(2)AWC1409

Excerpt

civil - dismissal of appeal - rule 56 of arms rules, 1962 - appeal dismissed on grounds of default - application filed for restoration also rejected by concerned authority - no opportunity to be heard given to appellant - rejection of restoration not justified and appeal to be restored for proper consideration. - .....rule 56 of the arms rules. 1962 prescribes the procedure to be followed by the appellate authority. it provides that 'on receipt of an appeal, the appellate authority may call for the records of the case from the authority who passed the order appealed against and after giving the appellant a reasonable opportunity of being heard, pass final orders'. thus, the appeal has to be decided after giving reasonable opportunity. on account of strike, if the appellant is unable to appear through counsel, in that event he should be given an opportunity. dismissal on the ground of default on such occasion amounts to denial of opportunity particularly when the application is made for recalling the order on that score.3. mr. a. upadhyaya. learned standing counsel contends that the restoration application was filed beyond time. but it appears that the order was passed on 7.4.1981 and the application was decided on 17,6.1981. even if the application was delayed, the delay is not such as to deny the appellant an opportunity.4. sri upadhyaya further contends that though the counsel did not appear but the appellant had appeared and cited decisions. but the order dated 7.4.1981 does not indicate any such situation. it only mentions that the case was called out. applicant was absent, and the appeal was, therefore, dismissed in default. therefore, this contention of learned standing counsel also cannot be sustained.5. in that view of the matter, the order dated 17.6.1981 contained inannexure-4 is hereby quashed and the appeal is restored to file. let a writ ofcertiorari accordingly do issue. the appeal may be decided on merits aftergiving opportunity to the appellant in accordance with law as early as possiblepreferably within a period of four months from the date of communication of thisorder to the appellate authority without being influenced by any observationsmade in this order.

Full Judgment

D.K. Seth, J.

1. As prayed for. leave is granted to learned counsel for thepetitioner to amend the prayer portion.

2. By the impugned order dated 17.6.1981 contained in Annexure-4, the Commissioner, Moradabad Division. Moradabad rejected the petitioner's application for recalling the order dated 7.4.1981 and restoring the appeal to file. The reason given is that no provision for restoration was shown to the Commissioner by the counsel for petitioner. The order appears to be misconceived. Inasmuch as the authority having power to dismiss is also empowered to recall. Rule 56 of the Arms Rules. 1962 prescribes the procedure to be followed by the appellate authority. It provides that 'on receipt of an appeal, the appellate authority may call for the records of the case from the authority who passed the order appealed against and after giving the appellant a reasonable opportunity of being heard, pass final orders'. Thus, the appeal has to be decided after giving reasonable opportunity. On account of strike, if the appellant is unable to appear through counsel, in that event he should be given an opportunity. Dismissal on the ground of default on such occasion amounts to denial of opportunity particularly when the application is made for recalling the order on that score.

3. Mr. A. Upadhyaya. learned standing counsel contends that the restoration application was filed beyond time. But it appears that the order was passed on 7.4.1981 and the application was decided on 17,6.1981. Even if the application was delayed, the delay is not such as to deny the appellant an opportunity.

4. Sri Upadhyaya further contends that though the counsel did not appear but the appellant had appeared and cited decisions. But the order dated 7.4.1981 does not indicate any such situation. It only mentions that the case was called out. applicant was absent, and the appeal was, therefore, dismissed in default. Therefore, this contention of learned standing counsel also cannot be sustained.

5. In that view of the matter, the order dated 17.6.1981 contained inAnnexure-4 is hereby quashed and the appeal is restored to file. Let a writ ofcertiorari accordingly do issue. The appeal may be decided on merits aftergiving opportunity to the appellant in accordance with law as early as possiblepreferably within a period of four months from the date of communication of thisorder to the appellate authority without being influenced by any observationsmade in this order.

Same Court & Year Allahabad · 1998 Same Parties Hari Singh vs State of U.P. and Others Same Subject Civil Same Judge D.K. Seth, J. Acts & Sections Arms Rules, 1962 - Rule 56

Civil