Heard Sri S. C. Tiwari, learned counsel for the petitioners and learned Standing Counsel on behalf of respondent no.10.
In brief facts as submitted by the learned counsel for the petitioner is that petitioner had initially filed a suit in the court of Civil Judge (Junior Division) , Faizabad, which was registered as Suit No.534 of 2004, Ram Abhilakh Vs. Laxman and others and the same was dismissed for want of prosecution by order dated 8.5.2006, thereafter, the petitioner moved an application for recalling of the said order under Order 9 Rule 4 along-with an application for condonation of delay. The court below on 16.11.2009 has issued the notices on the application for condonation of delay, hence the present writ petition.
Learned counsel for the petitioner submits that there is no justification or reason on the part of the court below to issue notices on the application for condonation of delay as initially when the suit was filed and interim injunction was granted in favour of petitioner by order dated 17.8.2004 and the same was continued till the suit was dismissed in default by order dated 18.5.2006. In these circumstances, the order dated 16.11.2009 passed by respondent no.10 in 83 of 2008 arising out of Regular Suit No.534/04, Ram Abhilakh Vs. Laxman and others as an action, which is contrary to principle of natural justice and fair play.
I have heard learned counsel for the petitioner and perused the record.
Admittedly in the present case the suit in question was filed in the year 2006 and the same was dismissed for want of prosecution on 8.5.2006, thereafter, an application under Order 9 Rule 4 read with Section 151 C.P.C. was moved as the said application was not filed within the statutory period of limitation as provided under law so the petitioner has also moved an application for condonation of delay under Section 5 of the Limitation Act and on the said application court below by order dated 16.11.2009 (Annexure no.1) has issued notices to the respondent thereby inviting the objections.
It is settled proposition of law that when an application has been moved beyond statutory period of limitation as provided under law for moving the same then it is mandatory to move an application for condonation of delay along-with said application and once the application for condonation of delay is moved then the mandatory duty is casted upon the court concerned to issue notices on the application for condonation of delay thereby inviting the objection from the other side why the same is not allowed and after disposing of the application for condonation of delay on merit the court concerned has jurisdiction to decide the application so move on merit.
In view of the said facts, the order dated 16.11.2009 (annexure no.1 to the writ petition) passed by respondent no.10 does not suffer from any legal infirmity.
Accordingly, the present writ petition filed by the petitioner lacks merit and is dismissed.
However, it is provided that respondent no.1 shall make all endeavour to consider and dispose of the matter in question expeditiously.
Order Date :- 19.1.2010 Pramod