Learned counsel for the petitioner states that a suit was filed in the year 1991 being suit no. 636 of 1991 in which the petitioner was defendant. The said suit was dismissed and the appeal filed against the order of trial court has also been dismissed. Thereafter, for the same cause, another suit no. 345 of 2004 was filed by the same plaintiff. The petitioner moved an application under Order 22 Rule 9 of C.P.C. that the said suit was barred. The Additional Civil (Senior Division), Khafifa, Bareilly has allowed the application vide order dated 25.1.2010. Against the said order, the respondent filed an appeal which has been dismissed after hearing both the parties vide order dated 3.8.2010. By the impugned order the appellate authority without giving any opportunity of hearing to the petitioner allowed the application and set aside the order dated 3.8.2010 and restored the appeal to its original number. The said order is impugned in the present writ petition.
Learned counsel for the petitioner submitted that once the order has been passed after hearing both the parties there is absolutely no justification for recalling of the said order. The order is patently illegal.
Issue notice to the respondent returnable at an early date. The petitioner may take steps to serve the respondent within a week.
List in the week commencing 18.7.2011.
Till the next date of listing, the operation of the order dated 27.4.2011 passed by the Special Judge SC/ST Act, Bareilly / Additional District Judge, Bareilly, Annexure-1 to the writ petition, shall remain stayed.
Order Date :- 11.5.2011 OP