Allahabad High Court
Ajay Pal Singh vs Yogesh Kumar on 8 August, 2022
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 9
Case :- MATTERS UNDER ARTICLE 227 No. - 5977 of 2022
Petitioner :- Ajay Pal Singh
Respondent :- Yogesh Kumar
Counsel for Petitioner :- Nipun Singh,Aditya Kumar Singh
Counsel for Respondent :- Ashish Kumar Singh,Ajay Kumar Singh
Hon'ble Vipin Chandra Dixit,J.
Heard Sri Nipun Singh, learned counsel for petitioner, Sri Ashish Kumar Singh, learned counsel for respondent and perused the record.
The brief facts of the case is that the suit filed by plaintiff-respondent was decreed by the trial court vide judgment and decree dated 20.10.2015 passed in Original Suit No.387 of 2011 (Yogesh Kumar Vs. Ajay Pal Singh). The petitioner had preferred an appeal against the judgment and decree dated 20.10.2015 which was numbered as Civil Appeal No.135 of 2016. During the pendency of appeal, the petitioner had moved an application under Order 41 Rule 23 and 23A read with Section 151 C.P.C., which is Paper No.96-Ga, on the ground that trial court has not framed any issue regarding readiness and willingness and request was made to set-aside the judgment and decree dated 20.10.2015 and remand back the matter to the court below. The plaintiff-respondent had filed objection to the application 96-Ga, which is Paper No.98-Ga. Learned lower appellate court vide order dated 5.4.2022 was pleased to direct that Application Nos.96-C, 98-C and 99-C will be considered at the time of final argument. The petitioner had moved an application for recalling of order dated 5.4.2022 which was rejected by the lower appellate court vide order dated 20.7.2022 which is impugned in this petition.
It is submitted by learned counsel for petitioner that order impugned dated 5.4.2022 has been passed by the lower appellate court without affording any opportunity of hearing to the petitioner and it is an ex-parte order and the court below has committed gross illegality in rejecting the recall application.
On the other hand, learned counsel appearing for respondent has submitted that learned lower appellate court has rightly passed the order dated 20.7.2022. It is further submitted that there is direction of this Court regarding expeditious disposal of appeal and the petitioner-appellant trying to linger the disposal of appeal. Lastly, it is submitted that there is no illegality in the impugned order.
Considering the rival submissions of learned counsel for the parties and perused the record. The learned lower appellate court vide order dated 5.4.2022 had directed that the applications filed by defendant-petitioner under Order 41 Rule 23 and 23A read with Section 151 C.P.C. will be considered at the time of final argument of appeal and the application is still pending for consideration and the recall application has rightly been rejected. There is no illegality in the impugned order. No good ground for interference is made out and the petition is devoid of merits.
The petition is dismissed accordingly.
Order Date :- 8.8.2022
Kpy
