Court No. - 05
Case :- MATTERS UNDER ARTICLE 227 No. - 5490 of 2019 Petitioner :- Poojan Respondent :- Khublal Counsel for Petitioner :- Santosh Kumar Mishra Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Santosh Kumar Mishra, learned counsel for the defendant- tenant/petitioner.
2. This petition under Article 227 of the Constitution of India, has been filed praying to set aside the order dated 31.08.2016 in SCC Revision No.11 of 2013 passed by the Additional District Judge/Special Judge (E.C. Act), Gorakhpur and the order dated 22.02.2019 in Misc. case No. 1717 of 2016 in SCC Revision No.11 of 2013 passed by the Additional District Judge/Special Judge (E.C. Act), Gorakhpur.
3. Briefly stated facts of the present case are that the plaintiff-respondent filed SCC Suit No.17 of 1997 (Khublal Das Vs. Poojan) for eviction of the petitioner and for recovery of rent. That suit was decreed by ex- parte judgment dated 17.10.1997. Against that judgment, the defendant-tenant/petitioner filed SCC Revision No.11 of 2013 (Poojan Vs. Khublal Das). In the said Revision, the defendant-tenant/petitioner filed an Application 19ga supported by an affidavit for withdrawal of the Revision. He also appeared before the court below and requested for dismissing the Revision as withdrawn. In these circumstances, the Application 19ga filed by the defendant-tenant/petitioner, was allowed and the SCC Revision No.11 of 2013 was dismissed by the Special Judge (E.C. Act), Gorakhpur by order dated 31.08.2016.
4. Thereafter, the defendant-tenant/petitioner filed a Misc. Case No.1717 of 2016 praying to recall the order dated 31.08.2016 on the ground that the aforesaid Revision was fraudulently got withdrawn by the plaintiff- respondent. The aforesaid Misc. Case No.1717 of 2016 (Application No. 4ga) was rejected by the impugned order dated 22.02.2019 passed by the Additional District Judge/Special Judge (E.C. Act), Gorakhpur.
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5. Aggrieved with these two orders, the defendant-tenant/petitioner has filed the present petition under Article 227 of the Constitution of India.
6. Learned counsel for the defendant-tenant/petitioner submits that the Revision was fraudulently got withdrawn by the plaintiff-respondent and, therefore, both the courts below have committed manifest error of law and facts in not recalling/ setting aside the order dated 31.08.2016.
7. I have carefully considered the submissions of learned counsel for the defendant-tenant/petitioner.
8. Undisputedly, the withdrawal Application in SCC Revision No.11 of 2013 was filed by the defendant-tenant/petitioner supported by his affidavit and he also appeared alongwith his counsel before the court below. Perusal of the order dated 31.08.2016 shows that before the court below, he himself requested for dismissing the Revision as withdrawn. In the order dated 22.02.2019, the court below has recorded a finding that the Application 19ga and the affidavit 21ga bear thumb impression of the defendant- tenant/petitioner and he was present in the court on 31.08.2016 and before the court, he accepted that he wants to withdraw the Revision. These are the findings of fact which could not be interfered under Article 227 of the Constitution of India. No material has been brought on record even to indicate prima facie that the withdrawal Application 19ga and the affidavit 21ga were not willingly filed by the defendant-tenant/petitioner. Under the circumstances, I do not find any good reason to interfere with the impugned orders.
9. For all the reasons afore-stated, the petition is dismissed with costs.
Order Date :- 30.07.2019 NLY