Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 7037 of 2016 Petitioner :- Harpal Singh Respondent :- A.D.J. Anoopshahar District Bulandshahar And 15 Others Counsel for Petitioner :- Kashi Naresh Mishra
Hon'ble Ajit Kumar,J.
Heard learned counsel for the petitioner and perused the record.
In view of the office report dated 20th August, 2018, service of notice upon the plaintiffs respondents is deemed sufficient.
By means of this petition under Article 227 of the Constitution, the petitioner has challenged the order dated 17th October, 2013 whereby the trial court while hearing the suit on remand by the court sitting in revision, directed to proceed ex parte in the suit on account of non appearance of the defendants respondents on the ground that even though on the papers received from the court in revision there was thumb impression carried upon the order sheet on 27th September, 2013 and yet the defendants on its own volition avoided to appear before the trial court.
In respect of the said order recall application was filed by the petitioner being paper No.115 C2 which was rejected on 13th May, 2017 citing the same ground and as a conduct also on the part of the defendant to avoid the hearing of the suit. Against the said order the petitioner preferred revision which also came to be rejected.
Having heard learned counsel for the petitioner and perused the pleadings available on record and having gone through the order impugned herein this petition, I find that the entire records were sent back by the court sitting in revision on 27th September, 2013 fixing 17th October, 2013 for the parties to appear and it is on 17th October, 2013 on which the defendants could not appear and the court accordingly, proceeded ex parte in the suit.
The recall application filed was also rejected on the above single ground. However, nothing transpires from the discussion in the order of the trial court as to what was the repeated conduct on the part of the defendant respondent which impressed upon the trial court to take the view that the defendants were deliberately delaying the suit proceedings.
In such above view of the matter, I am, therefore, not able to sustain the orders passed by the trial court on 17th October, 2013 and on 13th May, 2013. The court sitting in revision ought to have, in such circumstances, taken a pragmatic view to enable the defendant, to contest the matter as ultimately the endeavour of the court in civil proceedings should be adjudicate the disputes raised on merits to bring it within the meaning of the word 'adjudication'.
In such above view of the matter, therefore, I am not able to sustain the order passed by the court sitting in revision as well. Both the orders impugned in this petition are hereby set aside.
This petition is, accordingly, allowed.
The petitioner is directed to file an application for his appearance on or before 15th November, 2021.
The trial court shall thereafter proceed to hear the suit proceedings in accordance with law, of course, after giving full opportunity of hearing to the parties concerned.
Order Date :- 29.10.2021 Atmesh