Vijai Kishore vs Vi Addl. D.J.

Hon''ble Sibghat Ullah Khan, J.—Heard learned Counsel for the Petitioner. Cause shown is sufficient. Restoration Application is allowed on payment of Rs. 3,000/- as cost which shall be deposited before the Allahabad High Court Mediation Centre within ten days. Order dated 21.7.2004 dismissing the writ petition for want of prosecution is set aside and writ petition is restored to its original number.

Restored. For orders see order of date passed on the restoration application No. 271686 of 2010.

Inspite of sufficient service no one has appeared on behalf of contesting Respondent No. 3.

Heard learned Counsel for the Petitioner. Respondent No. 3--Ganga Ram instituted original suit No. 302 of 1983 against the Petitioner which was decreed on 24.9.1984 by Munsif, Hawali, Kanpur. On the said date none of the parties had appeared. Against the said judgment and decree Petitioner filed appeal on 11.1.1985 accompanied by an application for condonation of delay which was registered as Misc. appeal No. 34/74 of 1985. Vth Additional District Judge, Kanpur through judgment and order dated 9.7.1986 rejected the delay condonation application on merit and the appeal as belated. The said order has been challenged through this writ petition. In the impugned order it is mentioned that �on 24.9.1984 the Defendant did not appear, the Plaintiff too did not appear in the court, therefore, the court closed the evidence of the Defendant and decreed the suit.�

In the delay condonation application it was alleged that Petitioner came to know about the decision of the suit on 16.11.1984 and thereafter from 26.11.1984 to 9.1.1985 he remained ill. The affidavit filed in support of delay condonation application was not rebutted. However, the learned Additional District Judge on the ground that some typed words in the affidavit had been corrected by pen dis-believed the case of the Petitioner. In my opinion the learned Additional District Judge took a highly technical view of the matter. Delay was not much. Affidavit was not rebutted. The Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, has held that in such matters too strict or too technical view is not desirable.

Accordingly writ petition is allowed. The impugned order is set aside. Delay condonation application filed by the Petitioner before the Lower Appellate Court is allowed. Lower appellate court is directed to decide the appeal after issuing notice to the Respondent therein i.e. Shri Ganga Ram expeditiously.

This writ petition was earlier dismissed in default. Today it has been restored by order passed on the restoration application on payment of Rs. 3,000/- as cost to be deposited before Allahabad High Court Mediation Centre within ten days. Unless receipt of payment of cost is filed, certified copy of this judgment shall not be issued.