Chapter V Rule 8 of High Court Rules seeking connection of all 4 writ petitions bearing writ petition no. 23591 of 1992, writ petition no. 19462 of 1999, writ petition no. 19555 of 1999, writ petition no. 19572 of 1999 and defective First Appeal no. (248) of 2002 by nominating bench of division bench, the following report was submitted to the Hon’ble Chief Justice and his lordship has taken decision by an order dated 17.11.2003 by nominating bench presided over by Hon’ble Mr. Justice Dr. B.S. Chauhan J. the order passed by the Hon’ble Chief Justice. In the meantime since the appellant on account of his being pauper and thus unable to pay the court fees moved an application under Order 44 Rule 1 C.P.C. in Defective First Appeal No. (248) of 2002.,as the opposition was made by the counsel Senior Advocate of Paras Ram and Gajraj on the said application. That not only this the counsel for Paras Ram and Gajraj have raised their objections regarding the pendency of defective appeal as well as writ petition no. 38064 of 2002 being pursued simultaneously and at this stage when they have built up the pressure, then on account of settled proposition of law declared in case of Dr. Grant case reported in A.I.R. 1966 S.C. 237 followed by case of State of Bihar vs. Sharda Devi 2003 S. C. C. (3) 128, Mehar Rusi Dalal 2004 S.C.C. (7) 362, it was permitted to withdraw the defective First Appeal to the counsel for the appellant, that he may not proceed the first appeal on account of non-availability of such a huge amount of court fees amounting to Rs. 1,71,032.50 paise. That ultimately when the matter came up for hearing on 10-11-2005 then the counsel appearing on behalf of Paras Ram in writ petition no. 23591 of 1992 sought for withdrawal of recall application filed against the order dated 23-9-1996 being dismissed as not pressed. That on 17-11-2005 in the judgement passed in writ petition no. 38064 of 2002, the preliminary objections raised on behalf of respondent no. 4 and 5 have been upheld and writ petition no. 38064 of 2002 was dismissed. Hon’ble Court has taken into consideration that writ petition no. 38064 of 2002 was having the identical prayer as that of prayer of first appeal for setting aside the judgement and decree dated 29-4-2002 and 4-5-2002 in L.A.R. No, 421 of 1992, the writ petition no. 38064 of 2002 is barred on the ground of constructive res judicata. That the Hon’ble Supreme Court in case of Kunhayamad vs. State of Kerala 2000 (6) SCC 359 has held that dismissal of Special Leave to Appeal simpliciter will not deprive the appellant to avail the remedy of review under Order 47 Rule 1 C.P.C. as the prohibition lies for filing the review is only after conversion of Special Leave to appeal is converted in Civil Appeal before the Hon’ble Supreme Court. Thus the prayer is sought for recall of the order dated 17-11-2003 passed in the present defective appeal under the wrong legal perceptions regarding the challenge made therein is based upon de hors to the provisions of section 30 of L.A. Act as well as non est and nullity within eyes of law. Even the defective First Appeal No. 248/2002 withdrawn on 17-11-2003 on the persuasion of Hon’ble Justice Dr. B. S. Chauhan , when his lordship observed in open court that as per the ratio laid down in Dr. Grant Case, A.I.R. 1966 S.C. Sarda Devi Case , Smt, Shyamlata Jauhari vs. Collector, reported in 1990 A.W.C. page 1234, the Appeal U/S 54 of Land Acquisition Act is not maintainable. Hon’ble Justice Dr. B. S. Chauhan refused to pass any order on such application of recall of his lordship oral Prayer’s educative order dated 17.11.2003 and directed the matter to be listed on the ordinary Course. The other Senior Advocate , being the influencing lawyer got the payment of Rs. 22, 74,966.28 /= given to Gaj Raj Singh and Paras Ram through S.L.A.O. Gaziabad.
Posted on: Sat, 21 Sep 2013 10:25:57 +0000
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