Anil Kumar And Another vs Vidhya Sagar
2023 Latest Caselaw 3266 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 747 of 2023
 

 
Petitioner :- Anil Kumar And Another
 
Respondent :- Vidhya Sagar
 
Counsel for Petitioner :- Dharmendra Kumar Gupta,Kiran Gupta
 

 
Hon'ble Ajit Kumar,J.

Heard Sri Dharmendra Kumar Gupta, learned counsel for the petitioners.

By means of this petition filed under Article 227 of the Constitution, petitioners have challenged the order dated 29.11.2022 passed by the Judge, Small Causes allowing application under Section 5 of Indian Limitation Act in an application filed under Order 9 Rule 13 of Code of Civil Procedure, 1908 registered as Misc. Case No. 408 of 2022.

The argument advanced by learned counsel for the petitioners is that the view taken in misc. case filed under Order 9 Rule 13 C.P.C. by the applicant to the effect that he had not appeared in the suit is per se false as the Vakalatnama was very much on record and the order sheet of suit reflected that he had demanded copy of the plaint also.

In my considered view, the consideration of Section 5 application is only on the ground of delay and does not affect the merit of restoration application. It is simply for the purposes of maintaining the restoration application to be decided on its own merit. The plea which is sought to be raised before this Court can very well be taken at the time when the hearing upon the restoration application takes place and accordingly I permit the petitioners to raise this plea that the Vakalatnama had already been filed in a suit by the defendant and therefore, there was no occasion for recalling of an ex parte judgment.

Subject to the aforesaid liberty which will be examined by the court on its own merit, petition is dismissed and consigned to records.

Order Date :- 1.2.2023

IrfanUddin