Chakradhar Singh vs State Of Uttarakhand And Another

Pankaj Purohit, J

Heard learned counsel for the parties.

By means of this writ petition filed under Article 227 of the Constitution of India, petitioner has challenged the order dated 10.06.2024 passed by the learned District Judge, Chamoli in Miscellaneous Civil Case No.29 of 2023 Chakradhar Singh Vs. State of Uttarakhand, whereby, the application moved by the petitioner/appellant-applicant under Order 41 Rule 19 read with Section 151 CPC was rejected.

The facts of the case shorn-off unnecessary details are that a Miscellaneous Civil Appeal No.12 of 2019 Chakradhar Singh Vs. State of Uttarakhand, was pending consideration in the Court of District Judge, Chamoli since 2019. When the case was fixed on 21.09.2023 for argument, no one remained present from the side of the appellant and the matter was adjourned to lunch. But, despite on revised call, no one has appeared on behalf of the appellant even after lunch. Consequently, the appeal of appellant (petitioner herein) was dismissed in default.

Feeling aggrieved by the order dated 21.09.2023, an application under Order 41 Rule 19 read with Section 151 of the CPC (though the application should be under Rule 11 of the Uttar Pradesh Public Premises Rules, 1973), was moved for the restoration of the appeal of the petitioner. The aforesaid application has been rejected by the learned District Judge, Chamoli vide order impugned in the present writ petition.

I have perused the impugned order and from the impugned order it reflects that the petitioner’s approach has been casual in deciding the appeal, he sought several adjournments for argument in the Misc. Civil Appeal No.12 of 2019 Chakradhar Singh Vs. State of Uttarakhand. Rather even to decide the restoration application of the appeal, which was filed in 2023, several adjournments have been taken. Consequently, learned District Judge, Chamoli did not find favour with the learned counsel for the petitioner and rejected the said restoration application vide impugned order.

It is contended by learned senior counsel for the petitioner that the reasons have been assigned in the application that due to some urgent work, petitioner could not appear before the learned trial court and his advocate was absent due to illness of his wife. Further, it is also submitted by learned senior counsel for the petitioner that the lis to be decided on merits and if only one opportunity is provided to the petitioner, he shall argue in Misc. Civil Appeal No.12 of 2019 Chakradhar Singh Vs. State of Uttarakhand, without seeking any further adjournments.

Per contra, learned State Counsel supported the judgment and order dated 10.06.2024 passed by the learned District Judge, Chamoli.

Having considered the rival submissions made by the parties and having perused the record and the impugned order, this Court is of the opinion, that the appeal should be decided on merits. Accordingly, order dated 10.06.2024 is set aside. Application moved by the petitioner under Order 41 Rule 19 read with 151 CPC (under Rule 11 of the Uttar Pradesh Public Premises Rules 1973] in Miscellaneous Civil Case No.29 of 2023 Chakradhar Singh Vs. State of Uttarakhand, is hereby allowed. Order dated 21.09.2023 in Miscellaneous Civil Appeal No.12 of 2019 Chakradhar Singh Vs. State of Uttarakhand, is recalled. The Misc. Civil Appeal is re-admitted. The appellant will get minimum two opportunities to argue the Miscellaneous Civil Appeal No.12 of 2019 Chakradhar Singh Vs. State of Uttarakhand, finally.

In view of the above, the present writ petition is allowed.

Pending application, if any, also stands disposed of.