Allahabad High Court
Kripa Shankar Dixit vs Piyush Kumar Agarwal on 31 July, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:44472
Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 4667 of 2022
Petitioner :- Kripa Shankar Dixit
Respondent :- Piyush Kumar Agarwal
Counsel for Petitioner :- Anurag Narain Srivastava,Prashant Chaurasia,Shishir Mohan
Counsel for Respondent :- Ajay Kumar Singh,A.Z. Siddiqui
Hon'ble Pankaj Bhatia,J.
Order on I.A. No.14 of 2025:
1. The application seeks recall of the order dated 15.07.2025.
2. Learned counsel for the applicant states that the counsel had sent an illness slip, as such, he could not appear to argue the matter.
3. Cause shown is sufficient.
4. The application is allowed.
5. Order dated 15.07.2025 is recalled.
6. Writ petition is restored to its original file and number.
Order on Writ Petition:
7. Learned counsel for the petitioner argues that an ex-parte judgment came to be passed on 07.09.2021 under Section 21(1)(A) of U.P. Act No.13 of 1972. For setting aside the said order, an application under Order 9 Rule 13 CPC was filed on 25.04.2022. In the said application, it was stated that some oral settlement was going on in between the parties, as such, the petitioner had stopped appearing in the proceedings since the year 2019. It was further stated that the petitioner was suffering from medical ailment, as such, he could not appear in the matter. It was further stated that information with regard to the ex-parte judgment dated 07.09.2021 came to his knowledge on 19.04.2022 when he heard the murmuring in the society with regard to an order of eviction being passed in which 25.04.2022 was fixed for execution and thereafter an application was filed.
8. It is argued that the application was within time from the date of knowledge and considering the benefit of covid period limitation, the same could not have been rejected as was done by the trial Court.
9. The said facts are clearly contrary to the record inasmuch as the suit in question was instituted in the year 2016. In the application it was stated that the son of the landlord had a degree in Engineering and was still unemployed and considering the financial condition of the landlord, the son of the landlord was to be established in the shop in question.
10. It was also stated that despite the petitioner promising to vacate the premise, he did not vacate the shop, as such, the release application was filed under Section 21(1)(A) of U.P. Act No.13 of 1972. In the said suit, no written statement was filed by the petitioner and thereafter on 02.07.2019, the suit was directed to proceed ex-parte. Ultimately, as the petitioner did not appear, the suit in question was decreed ex-parte on 07.09.2021 based upon the affidavits with regard to bonafide need filed by the landlord.
11. After the substantial period of time when the execution was being pressed, the petitioner moved an application on 25.04.2022 seeking recall of the ex-parte order. In the said application, it was stated that since 2019, the petitioner was undergoing medical treatment. It was also stated that the landlord had promised to sell the shop in question to the tenant for a consideration of Rs.6,00,000/- and because of these things, the petitioner stopped appearing.
12. In the application before the trial Court nor before this Court, any agreement to sell has been filed nor any document depicting the medical condition of the petitioner was filed; the medical document that was filed did not consider why the petitioner could not appear in the case.
13. The trial Court after considering the conduct of the petitioner proceeded to dismiss the delay condonation application as well as the application under Order 9 Rule 13 CPC.
14. Considering the conduct of the petitioner who has managed to deny the benefit of the shop to the landlord whose son was unemployed and without there being any material to corroborate the assurance that an agreement to sell was proposed to be executed, clearly the petitioner was trying to delay the proceedings. In the present case also, there is no material that the need set up by the landlord for establishing his son was either fanciful or malafide; there is no material on record to suggest that the petitioner ever tried to find another shop during all these years, as such, present petition is dismissed.
15. At this stage, learned counsel for the petitioner states that he does not want to press his arguments and wants some reasonable time to vacate the premises.
16. Six months' time is granted to the petitioner to vacate the premises.
17. The petitioner shall file an affidavit in the form of an undertaking within a period of three weeks from today before the prescribed authority undertaking to vacate the premises in question on or before 31.12.2025 and to handover the vacant and physical possession to the landlord and to no one else.
18. In case such an undertaking is filed, the execution shall not take place till 31.12.2025.
19. In case the undertaking is not filed, the execution shall be concluded forthwith and a report shall be sent to this Court through Senior Registrar.
Order Date :- 31.7.2025
nishant
