Atar Singh vs State of U.P.and others

Krishna Murari, J.—Heard Sri P.V. Singh, learned Counsel for the petitioner and Rajiv Joshi for contesting respondent No. 6.

Pleadings have been exchanged between the parties and with the consent of the learned Ccunsel for the parties, the writ petition is being disposed of at the admission stage under the Rules of Court.

Suit under section 229B of the U.P.Z.A. & L.R. Act (for short ''the Act'') was dismissed by the Trial Court vide judgement and decree dated 16.1.2008 against which petitioner went up in appeal. On 3.6.2003 the appeal was dismissed on merits exparte without hearing the petitionerappellant. An application dated 12.6.2003 was filed to recall the exparte judgment on the ground that due to inadvertent mistake instead of 2.6.2003 the Counsel informed him 12.6.2003 as the date fixed on account of which he could not appear and the case was decided exparte. Unfortunately, the recall application also came to be dismissed in default on 21.4.2006. Another application to recall the said order was moved on 4.4.2007 which was duly supported by an application under section 5 of the Limitation Act explaining the delay. The Appellate Court vide order dated 29.10.2007 disbelieved the reason given for nonappearance on 2.6.2003 as well as the explanation submitted for delay in moving the application dated 4.4.2007 and dismissed both the applications. The Appellate Court has further held that order dated 3.6.2003 is not liable to recalled unless it is shown that the petitionerappellant has suffered some loss and the order has resulted into failure of justice. Revision filed by the petitioner was also dismissed by the Board of Revenue by a cursory order summarily. Aggrieved, the petitioner has approached this Court.

It has been urged by learned Counsel for the petitioner that petitioner could not appear on 2.6.2003 on account of the fact that due to inadvertent mistake the Counsel informed him the date to be 12.6.2003 and on the same day the recall application was moved. It has further been submitted that reason given in the section 5 application along with application dated 4.4.2007 was that the Counsel had assured him that he will do necessary pairvi and as soon as the recall application is restored he shall duly inform but the said information was not given and in such circumstances, the delay was liable to be condoned and the exparte judgement dated 3.6.2003 was liable to be recalled but the Courts below have committed manifest error in dismissing the two applications. Attention of the Court has also been drawn of the provision to Order XLI, Rule 17 of the Code of Civil Procedure which provides that the appeal is liable to be dismissed for non appearance of the appellant and the explanation which provides that nothing in subrule (1) shall be construed as empowering the Court to dismiss the appeal on merits.

In reply, learned Counsel for the contesting respondent has tried to justify the impugned order.

I have considered the argument advanced on behalf of the parties and perused the record.

In the facts and circumstances where due to inadvertent mistake, the petitioner was informed incorrect date, the cause for non appearance was sufficient and the Courts below have committed illegality in disbelieving the reason without there being any evidence to the contrary. In so far as the explanation given for delay in filing the application for restoration of the recall application that he was relying upon his Counsel was sufficient to condone the delay and the Courts below have wrongly refused to condone the same. Further the finding recorded by the Courts below that unless it is demonstrated that petitionerappellant has suffered some loss and the order has resulted into failure of justice the same is not liable to be recalled is also without any basis and substance. The appeal filed by the petitioner came to be dismissed on merits exparte and his recall application was also dismissed and in view of this fact it cannot be said that the petitionerappellant has not suffered any loss and the same has not resulted into failure of justice.

In such view of the matter, the orders impugned in the writ petition are not liable to be sustained and are hereby quashed.

The writ petition stands allowed.

Appellate Court is directed to decide the appeal on merits within three months from the date of production of a certified copy of this order before him in accordance with law after notice and opportunity of hearing to all concerned.