Allahabad High Court
Ghulam Mahuddin And 15 Others vs State Of U.P. And 8 Others on 26 July, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:149049
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 5533 of 2023
Petitioner :- Ghulam Mahuddin And 15 Others
Respondent :- State Of U.P. And 8 Others
Counsel for Petitioner :- Ekansh Varma
Counsel for Respondent :- C.S.C.,Mohd Aadil Siddiqui
Hon'ble Jayant Banerji,J.
1. Shri J.N. Shukla, (Advocate Roll- A/R AJ0012/12), learned counsel holding brief of Shri Ekansh Varma, learned counsel for the petitioners.
2. This petition has been filed by the plaintiffs with the following prayer:
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to set-aside the impugned orders dated-24-10-2009 passed by learned Civil Judge (S.D.)/A.C.J.M, Court no.5, Moradabad in Original Suit no.761 of 2002 Ghulam Ahmad (deceased) and others versus Ghulam Shabbir and others and impugned order dated-17-01- 2014 passed by Additional District and Session Judge, Court no.3, Moradabad in Misc. Appeal No.99/2009 and impugned order dated-21-01-2023 passed by Additional District and Session Judge, Court no.3, Moradabad in misc. restoration application no.06 of 2014."
3. At the outset, learned counsel for the petitioners states that due to inadvertence, the judgment dated 24.10.2009 passed by the trial court has been challenged in the present petition and he does not wish to press the same.
4. It is contended by the learned counsel for the petitioners that by the order impugned dated 17.1.2014, the civil appeal filed by the petitioners bearing no. 99 of 2009 was dismissed for non-prosecution. It is stated that thereafter an application for restoring the appeal was filed on 31.5.2014 which was rejected by the appellate court by means of the impugned order dated 21.1.2023. The contention of the learned counsel for the petitioners is that for transfer of the aforementioned civil appeal, an application, bearing Miscellaneous Case no. 92 of 2013 was filed, and therefore the plaintiffs were under the impression that till pendency of the transfer application, the appeal could not be heard and, therefore, they did not appear.
5. Shri Mohd Aadil Siddiqui, learned counsel appearing for the respondent nos. 2 and 3 has opposed the petition on the ground that the appellate court was justified in dismissing the appeal in default by means of the impugned order dated 17.1.2014 as on repeated dates the appellant-petitioners did not appear. It is stated that the order impugned dated 21.1.2023 was passed on the application filed under Section 5 of the Limitation Act and not on the application dated 31.5.2014 for restoration under Order 41 Rule 19 CPC, which is being referred by the petitioners' counsel.
6. A perusal of the record shows that a transfer application bearing no.92 of 2013 was filed in the court of District Judge Moradabad seeking transfer of the Civil Appeal no.99 of 2009 from the court of the Additional District Judge, Court No. 12, Moradabad to any other court. This application was filed on 28.3.2013.
7. The order dated 17.1.2014 dismissing the civil appeal reads as follows:
"???????? ??? ???? ????? ???? ??? ??????? ????????? ??? ???-??? ?? ?????? ??? ????? ???? ??? ?????? ??????? ?? ?? ?? ??? ????? ???? ??? ? ??? ??? ???? 40 ???? ?? ??? ?? ??????? ?? ?????????? ??? ???? ????? ?? ???? ??? ???????? ????? ????? ?? ?"
8. It appears that thereafter an application under Order 41 Rule 19 was filed for readmitting the appeal alongwith an application under Section 5 of the Limitation Act. However the application under Section 5 of the Limitation Act, that has been considered in the impugned order dated 21.1.2023 has not been filed with the instant petition. The appellate court, while rejecting the application no.7-(Ga) under Section 5 of the Limitation Act, has observed that despite repeated dates being fixed in the civil appeal, the petitioner did not appear and the case was being repeatedly adjourned.
9. It is stated in the order that after hearing the counsel for the parties on 20.3.2023, the case was fixed for 30.3.2013 for delivery of judgment. However, prior to delivery of judgment, the petitioner moved the transfer application before the District Judge. It was noted that several dates were fixed after 30.3.2013, but the appellants did not appear and thereafter the impugned order dated 17.1.2014 was passed. The court noted that the appellants were deliberately not appearing in the appeal, which is evinced from the fact that challenging the order dated 17.1.2014, the application under Order 41 Rule 19 was filed with a delay of 132 days and the delay had not been sufficiently explained. The application was, accordingly, dismissed.
10. There is no error or illegality in the order impugned that may merit interference in this petition. The conduct of the appellant-petitioners, as reflected in the impugned order dated 21.1.2023 evinces that the appellants were deliberately trying to delay the outcome of the appeal. No reason or explanation has been forthcoming by the learned counsel for the petitioners to explain such conduct or to demonstrate that the observations made by the appellate court are perverse, illegal or patently arbitrary.
11. Under the circumstances, this petition is dismissed.
Order Date :- 26.7.2023
K.K.Tiwari
(Jayant Banerji, J.)
