Allahabad High Court
Radheyshyam Gupta (Deceased) And ... vs Union Of India And 6 Others on 3 April, 2023
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 1011 of 2023
Petitioner :- Radheyshyam Gupta (Deceased) And Another
Respondent :- Union Of India And 6 Others
Counsel for Petitioner :- Rahul Sahai,Santosh Kumar
Counsel for Respondent :- A.S.G.I.
Hon'ble Prakash Padia,J.
Pursuant to the order passed by this Court dated 20.03.2023, affidavit filed on 24.03.2023 has already on record.
Heard Shri Rahul Sahai, learned counsel for the petitioners and Shri Shashi Prakash Singh, learned Senior Counsel assisted by Shri Mukhteshwar Upadhyay, learned counsel appearing on behalf of respondents.
The petitioners have preferred the present petition inter-alia with the prayer to set aside the judgment and order dated 16.11.2022 passed by the Additional District Judge Court No. 16 Kanpur Nagar in Misc. Civil Appeal No. 138 of 2008 (Radhey Shyam Gupta & Others vs. Union of India and others) as well as judgment/order dated 24.11.2008 passed by Ist Additional Civil Judge (Junior Division) Kanpur Nagar in Original Suit No. 423 of 2008 (Radhey Shyam Gupta vs. Union of India & others). Further to decide the temporary injunction application (6C-2) filed by the plaintiffs-petitioners in Original Suit No. 423 of 2008.
Facts in brief as contained in the writ petition are that the plaintiffs-petitioners have filed a suit being Suit No. 423 of 2008 (Radhey Shyam Gupta vs. Union of India & others). In the aforesaid suit, an application for the grant of interim injunction was rejected by the trial court vide order dated 24.11.2008.
Aggrieved against the aforesaid, Misc. Civil Appeal No. 138 of 2008 was filed by the petitioners in which an order of status quo was granted by the appellate court on 22.12.2008. During the pendency of the aforesaid appeal, original suit itself was dismissed in default on 29.04.2015. Recall / restoration application has been filed by the plaintiff-petitioner, the same was allowed and the suit was restored to its original number vide order dated 14.08.2018.
It is argued that though the suit was restored in the year 2018 but the Misc. Appeal filed by the plaintiffs-petitioners was rejected only on the ground that the suit has already been dismissed in default in the year, 2015. It is argued that the recital in the order passed by the trial court is absolutely illegal and against the record of the case.
In this view of the matter, it is argued that the order passed by the appellate court dated 16.11.2022 is liable to be set aside and the appellate court be directed to decide the Misc. appeal on merit.
Heard counsel for the parties and perused the record.
From perusal of the record, the Court is of the opinion that though the suit was dismissed in default on 29.04.2015 but the aforesaid order was recalled on 14.08.2018 and without taken into consideration of the aforesaid aspect of the matter, the Misc. Appeal was dismissed only on the ground that suit has already been dismissed.
In this view of the matter, the Court is of the opinion that the order passed by the appellate court dated 16.11.2022 is liable to be set aside and is hereby set aside. It further reveals from perusal of the record that the Original suit was filed by the plaintiff-petitioner in the year, 2008 more than 15 years has already been lapsed but till date the proceedings in the aforesaid suit were not concluded.
In the facts and circumstances of the case and with the consent of counsel for the parties, the present petition is disposed of finally, directing the trial court namely Additional Civil Judge (J.D.), Kanpur to decide the Original Suit No.423 of 2008 (Radhey Shyam Gupta vs. Union of India and others), most expeditiously and preferably within a period of one year from the date of production of certified copy of this order.
Interim protection was granted in favour of the plaintiff-petitioner by the trial court vide order dated 22.12.2008 will continue till the disposal of the aforesaid suit.
Order Date :- 3.4.2023
Swati
