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Court No.21
Civil Misc. Writ Petition No.2657 of 2009
Provogue (India) Limited
Versus
State of U.P. and others
Hon'ble V.K. Shukla, J.
Recall Application
On 19.08.2009 illness slip was sent by Sri Ayank Mishra, Advocate. This
Court (Tarun Agrawal, J.) passed following order:
“Passed over on the illness slip of Sri Ayank Mishr. The
order sheet indicates that the learned counsels for the petitioner
are sending illness slips.
The learned counsel for the petitioner in the connected
writ petition and the learned standing counsel in the connected
writ petition state that he had filed a counter affidavit on 14.7.09
and rejoinder affidavit on 6.8.09. Office to trace and place it on
record.
List peremptorily in the next cause list.”
Thereafter the matter was taken up 26.08.2009 and on the said date Sri
Rajeev Chauhan (mentioned as Rajeev Chaddha) had sent illness slip. As the
matter was directed to be listed peremptorily, this Court ( Hon’ble Tarun
Agrawal, J.) passed following order:
“This matter has been listed peremptorily because the learned counsels for the petitioner was
continuously sending illness slips. On the last occasion, Sri Ayank Misra had sent his illness slip and
today Sri Rajeev Chaddha has sent his illness slip. This case has been listed peremptorily today and
therefore, the request for adjournment at the behest of Sri Rajeev Chaddha who has sent his illness
slip today is rejected.
List has been revised. Other counsels appearing for the petitioner, namely, Sri P.K.Jain and Sri
Rajeev Chaddha are not present. The writ petition is dismissed for want of prosecution. Interim order, if
any, stands vacated.”
After the aforesaid order had been passed, present application has been
moved for recall of the order dated 26.08.2009. In the affidavit filed in support
of the aforesaid application, it has been mentioned that the aforesaid writ
petition was listed peremptorily on 26.08.2009 at serial No. 26, and the names
of Sri Rajeev Chauahan and Sri Ayank Mishra, along with Senior Counsel Sri
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P.K. Jain, were shown in the cause list; Sri Ayank Mishra, who was assisting
counsel, could not mark the case, and as such nobody could appear in the
matter. Further mention has been made that Sri Rajeev Chauhan (Rajeev
Chaddha mentioned in the order) was out of station and had gone to Lucknow,
therefore, he could not notice the matter. The grounds which are sought to be
taken are nothing, but bundle of false facts mentioned only for the purpose of
the case. On one day illness slip was sent by Sri Ayank Mishra, then the matter
was directed to be listed peremptorily. On the next day when case was so
listed, the other counsel, Sri Rajeev Chauhan, sent illness slip, and in the
application for recall, it has been sought to be contended that the said counsel
had gone to Lucknow. The fact of the matter is that the other counsel Sri
Rajeev Chauhan had sent illness slip on 26.08.2009, before this Court, and as
it is sought to be contended that he was out of station and had gone to
Lucknow, shows falsity of the matter, as on one hand, he has sent illness slip,
whereas on the other hand, he is stated to have gone to Lucknow. Theory of
not marking the case in the facts of case, cannot be accepted, as joint
vakalatnama of Ayank Mishra and Rajeev Chauhan was there. For putting
illness slip of Rajeev Chauhan, cqase had been marked and as his illness slip
was not entertained, then clearly as an after thought present theory of not
marking the case has been set up. Circumstance clearly reflect that present
application is nothing but pretense to get the order passed by this Court, on
false facts. Liberal view in such matters, does not give the privilege to
petitioner to set up any false case, and get order recalled as a matter of
course.
Once this is the factual scenario that the privilege of the illness slip is
being misused with impunity, and sufficiency of cause is not at all there, then
this Court refuses to recall the order passed. Consequently, there is no
occasion to recall the order passed. The application is rejected.
02.02.2010
SRY