Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1175 of 2018 Petitioner :- Chhote Singh Respondent :- Zila Panchayat Etah Counsel for Petitioner :- Uma Nath Pandey,Shiv Ram Dubey Counsel for Respondent :- Hari Prakash Mishra
Hon'ble Manoj Kumar Gupta,J.
Heard counsel for the petitioner and Sri Hari Prakash Mishra for respondent.
By impugned order dated 27.10.2017, the Additional District Judge, Court No.1, Etah has allowed Misc. Appeal No.156 of 1995 and has set aside the order dated 20.9.1995 passed by the trial court rejecting application of the plaintiff- respondent seeking restoration of the suit to its original number, after setting aside the order dated 21.1.1993 dismissing the suit for non prosecution. The appellate court has examined the reasoning given by the trial court for rejecting the restoration application. It has been observed by the appellate court that the restoration application was rejected on the sole ground that the application was not signed by authorised person of Zila Panchayat, nor was supported by any affidavit of a responsible officer but only a clerk, nor the counsel, who filed the application, has filed his Vakalatnama. The appellate court relying on decision of this Court reported in 1986 ALJ 1073 and 1989 (2) Current Civil Cases Vol.VIII Page 600 has held that a restoration application could be filed by the counsel. A specific finding has been recorded by the appellate court that the counsel through whom restoration application was filed was the counsel on behalf of Zila Panchayat in the suit and his Vakalatnama had not been cancelled, therefore, he was competent to file the restoration application. It is noteworthy that the suit was dismissed in default on 21.1.1993 and the restoration application was filed on 28.1.1993 i.e. within 10 days from the dismissal of the suit for non prosecution. The appellate court has also held that the endeavour of the court should be to decide the case on merits and accordingly, the restoration application has been allowed on payment of a cost of Rs.1000/-.
This Court does not find any reason to interfere with the order which is eminently just in the facts and circumstances of the case. The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 23.2.2018 SL