Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 111 of 2018 Appellant :- Aman Pratap Singh Respondent :- District Inspector Of Schools And Ors Counsel for Appellant :- Ramesh Chandra Dwivedi Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
Civil Misc. Delay Condonation Application No.1 of 2018
Heard learned counsel for the parties.
In view of the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act, we are satisfied that the applicant was prevented by sufficient cause from preferring the Special Appeal within the period of limitation.
The application is, accordingly, allowed and the delay in filing the Special Appeal is condoned.
Order Date :- 22.2.2018 SK (Dilip Gupta, J.) (Jayant Banerji, J.)
Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 111 of 2018 Appellant :- Aman Pratap Singh Respondent :- District Inspector Of Schools And Ors Counsel for Appellant :- Ramesh Chandra Dwivedi Counsel for Respondent :- C.S.C.
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Special Appeal has been filed against the judgment and order dated 16 November 2017 of a learned Judge of this Court by which Writ-A No.28067 of 1998 that had been filed for not only quashing the order dated 14 May 1998 passed by the District Inspector of Schools but also for a direction upon the respondents not to interfere with the working of the petitioner as Paricharak and to pay regular salary, has been dismissed. The judgment is reproduced below:-
"1. Called in revised. None appeared to press this writ petition. Learned Standing Counsel is present for respondents. In the circumstances, I myself have perused the record.
2. By means of present writ petition, petitioner has sought following reliefs:
a) to issue writ direction in the nature of certiorari quashing the order dated 14.05.1998 passed by the respondent no. 1 contained in Annexure-5 to the writ petition.
b) to issue writ direction or order in the nature of mandamus commanding the respondent to pay the salay to the petitioner regularly as per rules.
c) issue a writ direction or order in the nature of mandamus commanding the respondents not to interfere in the functioning of the petitioner as paricharak in the Institution.
3. I myself have gone through the pleadings, grounds as also reliefs sought and find that petitioner is are not able to make out a case so as to justify interference of this Court by granting reliefs, as prayed for.
4. Moreover, it appears that either the cause of action no more survives or the petitioner has lost interest in this matter or it has otherwise become infructuous and, probably for this reason, none is interested to have decided this matter on merits and that is why, counsel for petitioner is absent.
5. Dismissed. Interim order, if any, stands vacated."
Learned counsel for the appellant has submitted that the counsel for the petitioner could not appear before the learned Judge as the case was not marked. It is also submitted that cause of action still survives but as the matter has been decided on merits, a recall application cannot be filed.
In the absence of counsel for the petitioner, the learned Judge has, after reading the pleadings, found that the petitioner has not been able to make out a case for the Court to interfere. The learned Judge has also observed that the matter may have been rendered infructuous as counsel for the petitioner has not appeared. It was not possible for the learned counsel for the petitioner to have appeared before the Court as the case was not marked.
In the facts and circumstances of the case and when the matter has not been rendered infructuous, we consider it appropriate to set aside the judgment and order dated 16 November 2017 and restore the writ petition to its original number.
The Special Appeal is, accordingly, allowed.
Order Date :- 22.2.2018 SK (Dilip Gupta, J.) (Jayant Banerji, J.)