Court No. - 10
Case :- MATTERS UNDER ARTICLE 227 No. - 9865 of 2019 Petitioner :- Mohammad Khursheed Ahmad Respondent :- State Of U. P. Through District Collector And 3 Others Counsel for Petitioner :- Sufia Saba,Sayeed Saif Ullah Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard learned counsel for the petitioner and learned counsel for the respondent.
2. The petitioner prays for quashing of the order dated 04.07.2017 passed by the Civil Judge, Senior Division, Saharanpur in Misc. Case no.40 of 2015 (Mohd. Khursheed Ahmad Vs. State of U.P. and others), dismissing the suit of the petitioner for non prosecution as well as the order dated 02.11.2017 passed by the same court rejecting the application for restoration and the order dated 30.09.2019 passed by the Additional District Judge, Saharanpur in Misc. Civil Appeal No.55 of 2017 (Mohd. Khursheed Vs. State of U.p. and others), rejecting the same.
3. It has been submitted by learned counsel for the petitioner that the petitioner had filed the Original Suit No.40 of 2015 along with the Application under Order XXXIII to sue in forma pauperis on 26.03.2015. Learned trial judge by an order dated 22.04.2015 directed the Court Ameen to submit the report after investigation and fixed further date for 05.05.2015 for disposal of the application filed as an indigent person. The application continued to be listed and the petitioner continued to appear but no report was filed by the Court Ameen as directed by the learned trial court. Only on two dates, the petitioner could not appear before the learned trial court, therefore, learned trial court dismissed the application for non prosecution on 04.07.2017. The petitioner filed a restoration application praying that he was down with fever and his default was not willful or intentional and the case be restored to its original number. The said application was again rejected by the learned trial court by its order dated 02.11.2017. The petitioner having no other remedy filed an Appeal, which was registered as Misc. Civil Appeal No.55 of 2017, rejected by the learned Additional District Judge on 30.09.2019.
4. It has been orally submitted by learned counsel for the petitioner that the petitioner was sick and therefore could not appear on the two dates earlier to the date fixed i.e. on 04.07.2017, when the case was dismissed for non prosecution. Without appreciating the truth, the application of the petitioner was dismissed and also the appeal has been rejected arbitrarily.
5. This Court has gone through the order sheet in Misc. Case No.40 of 2015, which is an application registered under Order XXXIII for permission to the petitioner to file the suit as an indigent person. The learned trial court directed the Court Ameen to submit his report and on various dates fixed thereafter, the report of the Ameen could not be produced. On some dates, the lawyers were abstaining from work and on other dates, the Presiding Officer was on leave. Since none appeared to press the application on 18.11.2016, 28.11.2016 and 03.02.2017, an adjournment was sought on 24.03.2017 and thereafter none appeared on 12.05.2017, the lower court came to the conclusion that petitioner was not serious in pursuing his application and therefore dismissed the same for want of prosecution on 04.07.2017.
Thereafter, in the application for restoration filed by the petitioner, the petitioner did not file any medical prescription or medical report of a doctor to show that he was really sick, therefore, the restoration application had been rejected. In Misc. Civil Appeal, the learned Additional District Judge summoned the lower court record and perused the same and came to the conclusion that on several dates fixed by the learned trial court, none had appeared on behalf of the plaintiff/ appellant and the conclusion reached by the learned trial court on the application for recall having been filed without medical report/ medical certificate of a competent doctor was a valid conclusion that could be reached by the learned trial court in the facts and circumstances of the case, therefore, the Appeal has also been rejected.
6. This Court in limited jurisdiction of Article 227 of the Constitution of India cannot interfere in the findings of the fact recorded of learned trial court and the Appellate Court unless they are shown to be perverse. From a perusal of the order sheet, it appears that the conclusion drawn by learned trial court and Appellate Court are certainly the conclusions which could be drawn taking into account the repeated absence of the plaintiff before the learned trial court.
7. This Court therefore cannot show any interference.
8. The petition stands disposed of.
Order Date :- 18.12.2019/ Rahul