Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 2258 of 2018 Petitioner :- Omendra Kumar Respondent :- Vishal Counsel for Petitioner :- Virendra Singh Counsel for Respondent :- Santosh Kumar Yadav
Hon'ble Vivek Kumar Birla,J.
Supplementary affidavit filed today is taken on record.
Heard learned counsel for the petitioner, Shri Santosh Kumar Yadav, learned counsel appearing for the caveator (Plaintiff-respondent).
The present petition has been filed for seeking quashing of the order 16.2.2018 passed by District Judge, Budaun in Misc. Civil Appeal No. 3 of 2017 (Omendra Kumar vs. Vishal and others) and order dated 8.12.2016 passed by Additional Civil Judge, Senior Division, Budaun in Misc. Case No. 37 of 2014 (Omendra Kumar vs. Vishal).
By the impugned orders, the application of the petitioner filed under Order 9 Rule 13 C.P.C. has been rejected on the ground that the reason for non-appearance has not been satisfactorily explained and medical certificate submitted by the defendant are only from the period of 18.2.2013 to 7.5.2014, whereas for the rest of period, the absence has not been supported by any medical evidence.
Submission is that the petitioner was suffering from illness and was unable to move, and therefore, he was not able to do effective pairvi of the case. The reasons given by the courts below that the certificates have not been issued by Orthopaedic Surgeon are in technical in nature, and therefore, the impugned orders are liable to be set aside.
Per contra, learned counsel appearing for the respondents has submitted that the medical certificates have been obtained for the purpose of explaining the delay and even such medical certificates do not cover the entire case and his confinement in the hospital has also not been proved.
I have considered the submissions and perused the record.
There is no doubt that the entire period has not been sufficiently explained by the petitioner. However, in the interest of justice, taking a lenient view of the matter, one opportunity is provided to the petitioner for contesting the matter on payment of heavy cost and strict conditions.
Accordingly, it is provided that the impugned orders are set aside on payment of cost of Rs. 25,000/-(Rupees Twenty Five Thousand only) to be paid positively within a period of thirty days from today before the court below to the plaintiff- respondent.
It is further provided that the court below shall make all efforts to decide the suit preferably within a period of one year from the date of a production of certified copy of this order by fixing short dates and no unnecessary adjournments shall be granted by the court below.
The plaintiff is also expected to cooperate in the hearing.
In case, any adjournment is granted, the reasons for granting adjournment shall be recorded by the court below. In case, defendant-petitioner herein seeks any adjournment that shall not be allowed except on payment of cost of rupees not less than three thousand per adjournment.
It is made clear that in case cost of Rs. 25,000/- (Rupees Twenty Five Thousand only) is not paid to the plaintiff-respondent within a period of thirty days from today before the court below or is not deposited before the court below for payment to the plaintiff within the aforesaid period, the present petition stands automatically dismissed.
Learned counsel for the petitioner states that Execution Case No. 3/14 is pending.
Further proceedings of the execution case shall be subject to the decision of the court below. In case, the suit is decided against the defendant, the execution proceedings shall resume. Restoration application or application under Order 9 Rule 13 stands allowed and the suit is restored to its original number.
Accordingly, impugned order dated 16.2.2018 passed by District Judge, Budaun in Misc Civil Appeal No. 3 of 2017 (Omendra Kumar vs. Vishal) and order dated 8.12.2016 passed by Additional Civil Judge, Senior Division, Budaun in Misc. Case No. 37 of 2014 (Omendra Kumar vs. Vishal) are hereby quashed.
The petition stands allowed with the observations as made above.
Order Date :- 24.4.2018 Sumaira