Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 173 of 2018 Appellant :- Surendra Rao Respondent :- D.I.O.S. And 2 Others Counsel for Appellant :- Arun Kumar Singh,Ashok Khare Counsel for Respondent :- C.S.C.,Balwant Singh
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
Order on Delay Condonation Application
Heard learned counsel for the parties.
In view of the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act, we are satisfied that the applicant was prevented by sufficient cause from preferring the Special Appeal within the period of limitation.
The application is, accordingly, allowed and the delay in filing the Special Appeal is condoned.
Order Date :- 30.3.2018 sfa/ (Dilip Gupta, J) (Jayant Banerji, J)
Court No. - 39
Case :- SPECIAL APPEAL DEFECTIVE No. - 173 of 2018 Appellant :- Surendra Rao Respondent :- D.I.O.S. And 2 Others Counsel for Appellant :- Arun Kumar Singh,Ashok Khare Counsel for Respondent :- C.S.C.,Balwant Singh
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Special Appeal has been filed against the judgment and order dated 5 January 2018 passed in Writ-A No. 36398 of 2000, whereby, the writ petition filed by the petitioner-appellant has been dismissed in absence of the counsel for the petitioner- appellant and on the ground that the petitioner-appellant is not able to make out a case so as to justify interference of this Court by granting reliefs, as prayed for and that apparently either the cause of action no more survives or the petitioner-appellant has lost interest in the matter or that the petition become infructuous. The judgment is reproduced below:-
"1. Called in revised. None appeared on behalf of the petitioner. However, I have perused the record.
2. By means of present writ petition, petitioner has sought following reliefs:
"(i). A writ, order or direction in the nature of certiorari quashing the order dated 29.7.2000 passed by the District Inspector of Schools, Gorakhpur (Annexure 14 to the writ petition);
(ii). A writ, order or direction of suitable nature commanding the respondents not to interfere in the working of the petitioner as Assistant Teacher in L.T grade in Patel Smarak Inter College Patel Nagar Bhathat, Gorakhpur and to pay the petitioner his regular monthly salary on the said post regularly every month;
(iii). A writ, order or direction of suitable nature commanding the respondents to disburse to the petitioner the arrears of salary from Aug. 1997 till date within a period to be specified by this Hon'ble Court.
3. However, I have gone through the pleadings, grounds as also reliefs sought and find that petitioner is not able to make out a case so as to justify interference of this Court by granting reliefs, as prayed for.
4. Moreover, it appears that either the cause of action no more survives or that petitioner has lost interest in this matter or it has otherwise become infructuous and, probably for this reason, none is interested to have decided this matter on merits and that is why, counsel for petitioner is absent.
5. Dismissed. Interim order, if any, stands vacated".
Learned counsel for the petitioner-appellant has submitted that due to his being busy in some other Courts, he could not appear before the learned Judge when the matter was called out on 5 January 2018 and he had no knowledge of the judgement dated 5 January 2018. It is also submitted that cause of action still survives but as the matter has been decided on merits, a recall application cannot be filed.
In the absence of counsel for the petitioner-appellant, the learned Judge has, after reading the pleadings, found that the petitioner-appellant has not been able to make out a case for the Court to interfere. The learned Judge has also observed that the matter may have been rendered infructuous as counsel for the petitioner-appellant has not appeared. The learned counsel for the petitioner-appellant has stated that he could not appear before the Court.
In the facts and circumstances of the case and when the matter has not been rendered infructuous, we consider it appropriate to set aside the judgment and order dated 5 January 2018 and restore the writ petition to its original number.
The Special Appeal is, accordingly, allowed.
Order Date :- 30.3.2018 sfa/ (Dilip Gupta, J) (Jayant Banerji, J)