Allahabad High Court
Dr. M.C. Saxena , College Of ... vs State Of U.P. Thru. Secy. Higher ... on 19 October, 2022
Bench: Ramesh Sinha, Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 219 of 2022
Appellant :- Dr. M.C. Saxena , College Of Education Lucknow Thru. Prin.
Respondent :- State Of U.P. Thru. Secy. Higher Education U.P. Civil Secrett. Lko. And Others
Counsel for Appellant :- Rishabh Raj
Counsel for Respondent :- C.S.C.,Savitra Vardhan Singh,Smt. Nalini Prakash Jain
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Renu Agarwal,J.
C.M. Application No. 2 of 2022 : Application for Condonation of Delay
As per the report of Stamp Reporter, the instant intra Court appeal has been filed by the appellant beyond 51 days.
Since cause shown in the affidavit filed in support of application for condonation of delay in filing the instant appeal appears to be satisfactory, the instant application for condonation of delay is allowed. Delay in filing the instant appeal is condoned.
Order On Memo of Appeal
The instant intra Court appeal has been filed by the appellant, Dr. M.C. Saxena, College of Education, Dubagga, Lucknow through its Principal, challenging the judgment and order dated 28.07.2022 passed by the learned Single Judge in Writ-C No. 36239 of 2019 : Km. Priya Yadav Vs. State of U.P. and others, whereby the learned Single Judge allowed the writ petition with the following directions :-
?The service report with regard to the service of notice on opposite party no. 3 is on record.
In view of the fact that the main relief is against the respondent no. 3 and no body has appeared despite notice, treating the averments to be correct, the petition is allowed. The respondent no. 3 is directed to refund the fees amounting to Rs. 80,000/-, deposited by the petitioner, alongwith 6% interest. The petitioner shall also be entitled to a cost of Rs. 50,000/- (Rupees Fifty Thousand) as made in Prayer No. ii. The said amount shall be paid by the respondent no. 3 in accordance with law within a period of three months from moving an appropriate application before the respondent no. 3.
The petition stands allowed.?
Heard Shri Rishabh Raj, learned Counsel for the appellant, Shri Indrajeet Shukla, learned Additional Chief Standing Counsel for the State/respondent no.1, Shri Savitra Vardhan Singh, learned Counsel for the respondent no.2/Lucknow University, Smt. Nalini Prakash Jain, learned Counsel for the respondent no.3/writ petitioner and perused the impugned judgment and order as well as material brought on record.
Learned Counsel for the appellant states that the writ petitioner had only deposited Rs.20,000/- in the appellant?s college for pursuing B.Ed. Course in 2013-2014 as is evident from Annexure No.1 to the writ petition itself, which is a fee deposit receipt but this fact was concealed by the writ petitioner and false averments were made in the writ petition to the effect that the writ petitioner had deposited Rs.80,000/- in the appellant?s college for pursuing B.Ed. Course and while treating the averments made in the writ petition to be correct, the learned Single Judge allowed the writ petition by means of the impugned order. He argued that the impugned order is an ex parte order as is evident from the impugned order itself. He argued that notice of writ petition filed by the writ petitioner was issued during period of Covid-19 lockdown, wherein the schools and colleges were closed due to the pandemic Covid-19 and thereafter neither the appellant nor any of the management staff were apprised of the notices so received, if any, by the security guard/caretaker of the appellant?s college, therefore, no one had put in appearance on behalf of the appellant before the learned Single Judge. His submission is that if the appellant had any knowledge about filing the writ petition, he would have appeared before the learned Single Judge and put-forth the correct facts before the learned Single Judge by filing counter affidavit in the writ petition. He prays that the matter may be remanded back to the learned Single Judge for deciding it afresh, in accordance with law.
Per contra, learned Counsel for the writ petitioner/respondent no.3 has tried to justify the impugned order passed by the learned Single Judge, but could not dispute the fact that the impugned judgment and order dated 28.07.2022 passed by the learned Single Judge is an ex parte order.
Having heard learned Counsel for the parties and gone through the record, it transpires from the impugned order that learned Single Judge allowed the writ petition by treating the averments made in the writ petition to be correct as no body has appeared on behalf of the respondent no.3/appellant herein despite notice and the main relief was against the respondent no.3/appellant herein. But what argument were submitted by the learned Counsel for the petitioner and learned Standing Counsel and what issues were raised, is not stated in the impugned judgment. The issue raised by the appellant herein that writ petition was filed by the writ petitioner by making a false averments, is also a serious aspect. In this regard, another principle applies that if an order has been obtained by playing fraud and misrepresentation, such an order is a nullity. Fraud vitiates everything. Therefore, on this aspect, if what has been stated by learned counsel for appellant is correct, judgment of learned Single Judge, which has been challenged in this appeal, cannot be sustained.
However, since learned Single Judge had not decided the matter after giving opportunity to respondents to file counter affidavit and matter has been decided ex parte, in the interest of justice, we find it appropriate to allow this appeal; set-aside the impugned judgment dated 28.07.2022 and remit the matter back to the learned Single Judge for deciding it afresh, in accordance with law.
In view of the aforesaid, the instant special appeal is allowed. The impugned order dated 28.07.2022 is hereby set-aside. The Writ-C No. 36239 of 2019 is restored to its original number. The matter is remanded to learned Single Judge with a request that after giving adequate opportunity to parties in the matter, writ petition be decided afresh in accordance with law, expeditiously, preferably within three months.
(Mrs. Renu Agarwal, J.) (Ramesh Sinha, J.)
Order Date :- 19.10.2022
Arnima
