Anand Kumar Bhatnagar vs Kesar Bai and Others

Sudhir Narain, J.—This writ petition is directed against the order dated 1101999 rejecting the application for restoration and application for condoning the delay in filing of such application.

The facts in brief are that the plaintiffrespondent filed a suit for recovery of the arrears of rent, ejectment and damages against the petitioner. The trial Court decreed the suit in the year 1994. The petitioner preferred a revision against the said order.

During the pendency of the revision the plaintiffrespondent died and application for substitution was filed and petitioner was required to take steps. The Court had fixed on 23299 and the revision was dismissed on 1941999 for nonprosecution. On the date fixed nor the petitioner nor his counsel was present in the Court. The petitioner filed an application to recall the said order on 7799 alongwith the delay condonation application and affidavit. The objection was filed. The respondent No. 2 has rejected the application. It was stated that the petitioner is an employee in the Railway. On the ground of the mistake of clerk of the counsel could not note the correct date of appearing in the Court or taking a plea. The Court has rejected the application on the ground that the petitioner was negligent in proceedings with the case. He had not filed an affidavit of clerk of counsel.

It may be that the petitioner had not filed affidavit of clerk but his version that he was misled fry his clerk has not been disbelieved by the Court.

Considering the facts and circumstances of the case, the writ petition is allowed. The order dated 1101999 is hereby quashed. In the interest of justice, the application for restoration is accepted subject to payment of Rs. 5,000/ as costs payable within three weeks from today.

Sri B.N. Agarwal, learned counsel appearing for the respondents No. 1 to 4 had made a statement that he will file vakalatnama on behalf of D.D. Chaurisiya, respondent No. 1.

The rcvisional Court is directed to decide the revision within six weeks from the date of production of certified copy of this order. In case the amount is not deposited by the petitioner the application shall stand rejected. The petitioner shall not be evicted during the pendency of the revision subject to the payment of amount as costs as is directed above.

A certified copy of this order shall be given to the learned counsel for the parties on payment of usual charges within 48 hours. Petition allowed.