Allahabad High Court
Dilawar Singh vs Indra Pal Singh on 14 July, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:139915
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 6569 of 2023
Petitioner :- Dilawar Singh
Respondent :- Indra Pal Singh
Counsel for Petitioner :- Kaushalendra Nath Singh
Hon'ble Jayant Banerji,J.
1. Heard learned counsel for the petitioner.
2. This petition under Article 227 of the Constitution of India has been filed with the following prayers:-
"I. Issue a writ, order or direction in the nature of certiorari for quashing the order dated 28-04-2023 passed by the Civil Judge, (Junior Division), Outline Court, Sambhal in Case No.1114 f 2014 (Dilawar Singh vs. Indrapal Singh & Ors.), by means of which Civil Judge (Junior Division), Sambhal has passed an ex-parte order and dismissed the suit for non presence.
II. Issue a writ, order or direction in the nature of mandamus commanding and directing the Civil Judge, (Junior Division)/Judicial Magistrate, First Outline Court, Sambhal, District Sambhal to decide the restoration application within a time bound period."
3. The contention of the learned counsel for the petitioner is that after the application for temporary injunction filed by the petitioner in a suit, bearing Suit No.1114 of 2014 (Dilawar Singh vs. Indra Pal Singh & Ors.), for permanent injunction was rejected, the petitioner approached this Court by means of a petition, being Matters under Article 227 No.1686 of 2016, which was disposed of by means of a judgment dated 18.03.2016 setting aside the impugned order dated 03.03.2016 passed by the appellate court and the matter was remitted to the appellate court to decide afresh. It is contended that thereafter, by means of an order dated 14.09.2017, the appellate court in Misc. Appeal No.55 of 2014 allowed the appeal and a temporary injunction was granted directing the defendants not to create any changes and to maintain status quo with regard to the factory, M/s Puran Sugar Works situated in Plot No.118 area 0.6320 hectares at Mauja Mohammadpur Tanda, Tehsil-Sambhal, District Moradabad. It is stated that thereafter the case was proceeding before the trial court and on 20.04.2023, when the matter was called out, the counsel for the defendant no.1 and the counsel for the third party were present, but none appeared for the plaintiff and thereafter, after affording a last opportunity, 27.04.2023 was the date fixed. It is contended that on 27.04.2023, the Judge of the trial court was on leave and, therefore, the counsel for the plaintiff was informed that a certain date would be fixed. It is stated in paragraph 35 of this petition as under:-
"35. That it is further pertinent to mention here that when the Lawyer went to the Court he was informed that the date will be fixed and he will be informed accordingly, but no such information was given to the lawyer and when the lawyer went to inspect the file was found that the order impugned dated 28-04-2023 was passed dismissing the case of the petitioner for non presence. A true copy of the ordersheet is being filed herewith and marked as ANNEXURE NO.26."
4. It is stated by the learned counsel that 27.04.2023 being the date fixed was known to the plaintiff-petitioner, but the fact that the very next date would be fixed in the matter could not be known and, therefore, he could not appear on 28.04.2023 and the case was dismissed for non-prosecution on 28.04.2023. The sole prayer made by the learned counsel for the petitioner is that the application dated 17.05.2023 filed under Order IX, Rule 9 CPC be directed to be decided expeditiously and the interest of the plaintiff-petitioner be protected in the meanwhile.
5. In view of the aforesaid facts and circumstances, the trial court is directed to decide the restoration application dated 17.05.2023 filed by the plaintiff-petitioner expeditiously, if the same is on record. For a period of one month from today, the parties shall maintain status quo as on date.
6. It is evident that the issues are yet to be framed in the matter though the learned counsel for the petitioner states that the written statement has been filed filed. Therefore, the trial court is also directed to frame the issues and proceed with the suit without granting any unnecessary adjournment to either of the parties.
7. With the aforesaid observations, this petition is disposed of.
Order Date :- 14.7.2023
SK
(Jayant Banerji, J.)
