Allahabad High Court
Udai Narain vs State Of U P And 6 Others on 1 August, 2019
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- WRIT - C No. - 25145 of 2019
Petitioner :- Udai Narain
Respondent :- State Of U P And 6 Others
Counsel for Petitioner :- Ashok Kumar Shukla
Counsel for Respondent :- C.S.C.,Prabhas Kumar Tiwari
Hon'ble Anjani Kumar Mishra,J.
Heard learned counsel for the petitioner and Shri R.K. Ojha, Senior Advocate for respondent no. 4.
With the consent of the parties the writ petition is decided finally without calling for a counter affidavit. In any case, the unrepresented parties are proforma parties.
The contention of counsel for the petitioner that a partition suit had decreed in the year 2011. On 14.09.2016 a restoration application was filed by respondent no. 4 which was allowed without any notice to the petitioner. The consequential revision filed by the petitioner was allowed and the matter was remitted back for fresh consideration on the restoration application.
It is stated that this belated application was allowed by the trial court without condoning the delay in filing it. This illegal order has been affirmed by the revisional court without adverting to this aspect of the matter and only on the ground that the petitioner still has every opportunity of canvassing his claim before the trial court.
It is submitted that the trial court had no jurisdiction to entertain the restoration application on its merits, till such time, the delay in filing it had been condoned. This has not been done.
Counsel appearing for respondent no. 4 Shri R.K. Ojha, Senior Counsel appearing for respondent no. 4 the contesting respondent has not been able to demonstrate that the restoration application was allowed after condoning the delay occasioned in filing it.
Under the circumstances, the writ petition is liable to be and is hereby allowed. The impugned orders dated 17.05.2019 and 03.12.2018 passed by Commissioner Chitrakoot Dham and Assistant Collector Ist Class/Sub-Divsional Magistrate Mau, District-Chitrakoot respectively, are hereby quashed.
The matter is remitted back to the trial court to pass appropriate orders on the delay condonation application accompanying the restoration application filed by the respondent no. 4 strictly in accordance with law after hearing all concerned.
It is clarified that the court shall proceed to consider the restoration application only in case, it considers appropriate to allow the delay condonation application.
This exercise be concluded as expeditiously as possible preferably within a period of six weeks from the date a certified copy of this order is filed before the trial court.
Subject to the above the writ petition is allowed.
Order Date :- 1.8.2019
sweta
