Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 6969 of 2018 Petitioner :- Rama Shankar Alias Loha Singh (Deceased) And 07 Others Respondent :- Vishwanath Chaudhary Alias Vishu Chaudhary And 43 Others Counsel for Petitioner :- Ram Ji Singh,Balendra Deo Misra Counsel for Respondent :- Om Singh Rathaur
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Balendra Deo Misra, learned counsel for the petitioners and Shri Jitendra Kumar, Advocate holding brief of Shri O.S. Rathaur, learned counsel for the plaintiff-respondents.
In view of the order, which is proposed to be passed, notices need not go to the private respondent.
The petitioners have approached this Court assailing the validity of order dated 05.01.2001 passed by learned District Judge, Ballia, in Civil Appeal no.49/1985 (Rama Shankar and others vs. Vishwanath and others) and further be pleased to set aside the order dated 29.05.2018 passed by Special Judge, Ballia in Misc. Case no.3/2001 (Rama Shankar and others vs. Vishwanath and others), whereby, the application under Order 41 Rule 19 CPC, which was moved on 21.01.2001 for recalling the order dated 05.01.2001 (which was well within time), has been rejected.
Learned counsel for the petitioners states that against the judgement and decree dated 07.01.1985 passed in O.S. no.154/1984 (Vishwanath Chaudhary @ Vish Chaudhary and other vs. Mst. Ajoria and others), the petitioners had preferred appeal bearing no.49/1985 (Rama Shankar and others vs. Vishwanath and others) on 07.01.1985. Admittedly the plaintiff-respondent had put their appearance and case was referred for final arguments/final disposal but unfortunately, the first petitioner fell seriously ill on 04.01.2001 and could not reach the Court and the said case was dismissed for want of prosecution by order dated 05.01.2001. He further submits that at no point of time any attempt has been made to delay the matter and immediately after knowing information of order dated 05.01.2001, on 20.01.2001, the restoration application under Order 41 Rule 19 CPC has been moved for re-admission of the appeal. Unfortunately, the said application was pending consideration for 17 years period and the same has also been rejected vide order dated 29.05.2018. In this backdrop, it is urged that much lenient view ought to have been taken by the Court concerned but in most arbitrary manner, the application under Order 41 Rule 9 CPC has been turned down and as such, this Court should come to the rescue and reprieve of the petitioners.
Per contra, Sri Jitendra Kumar, Advocate has opposed the writ petition and submits that so far as the orders impugned are concerned, the same are fully sustainable in the present facts and circumstances of the case and once every attempt was being made by the defendant-respondents to delay the proceedings, then the Court concerned has proceeded to pass the order impugned rejecting the recall application in question and as such, this Court should not at all interfere in the matter.
Heard rival submission and perused the record.
Record in question reflects that when the appeal in question was dismissed for non prosecution, the same was at the stage of final argument/disposal. It has been claimed that only deponent-Rama Shankar was looking after the case and on account of his solitary absence, the appeal was dismissed for non prosecution. Even, for such default, he had patiently waited for long period of 17 years for restoration of the appeal but unfortunately the restoration application was also rejected by the order impugned and as such, it is requested that for such an incident, the petitioners should not be penalised in such harsh manner and sympathetic consideration is liable to be extended in favour of the petitioners.
The Apex Court in the case of Kewal Krishan v. Harnek Singh & Ors., (2001) 9 SCC 117 has proceeded to take a lenient view in the matter and the appellant-plaintiff has been extended one more opportunity of leading evidence subject to payment of cost of Rs.500/-. In Bhagwat Prasad Sharma & Anr. v. District Judge, G.B. Nagar & Ors., 2012 (90) ALR 80, this Court has also taken a lenient view and placed reliance on the judgment of the Apex Court in State Bank of India v. Km. Chandra Govindji, JT 2000 (Suppl.2) SC 433 and allowed the petitioners to lead evidence subject to cost of Rs.5000/-.
Considering the facts and circumstances of the case, as the aforesaid restoration application was pending for consideration for long period of more than 17 years, in the interest of justice, this Court is of the considered opinion that one more indulgence is liable to be extended to the petitioner and as such, it is provided that the orders impugned dated 29.05.2018 as well as 05.01.2001 are set aside. The writ petition is allowed with the cost of Rs.500/- to be paid to the contesting respondent. The matter is remitted back to the Appellate Court to decide the appeal in question on the merit of the case expeditiously, preferably within a period of one year from the date of production of certified copy of this order and without granting unnecessary adjournment to either of the parties, except upon payment of cost.
Order Date :- 18.9.2018 A. Pandey