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2003 DIGILAW 314 (UTT)

Satya Singh Kandari v. Amber Kukreti

2003-12-22

RAJESH TANDON

body2003
JUDGMENT Heard the learned counsel for the parties at length. 2. By the present writ petition the petitioners have prayed for the issue of a writ, order or direction in the nature of certiorari quashing the order dated 14.2.2000 and 6.4.2000, annexure 4 & 9 to the writ petition. 3. Briefly stated the facts giving rise to the present writ petition are that the respondent has filed a suit being S.C.C. Suit No. 37 of 1988, Amber Kukreti vs. Bachan Singh and another on the grounds two folds. 4. Firstly, that despite notice of demand the petitioners have not paid the rent and secondly, that defendant no. 1 has sublet the premises to the defendant no. 2. 5. The defendants have contested the suit and stated that there is no default in the payment of rent further both the defendants being brothers and are residing much before 5th July 1976 in the disputed premises and as such there is subletting in the eye of law. 6. The suit was decreed by the II Additional District Judge, Dehradun on 5th July 1995. Aggrieved by the aforesaid order a SCC Revision No. 38 of 1995 was filed by the petitioner. The revision was taken up on 14.2.2000 and it was dismissed in default. 7. The petitioner has submitted that he has filed a restoration application at about 3.45 PM. The applicant was present on the same day in the same Court but his application was rejected by the impugned order. Hence the present writ petition has been filed. 8. At the time of admission of the writ petition following order was passed by Hon'ble Mr. Justice Sudhir Narain : "Till the next date of listing the petitioners shall not be evicted from the disputed premises provided they deposit a sum of Rs. 10,000/- as damages before the trial court concerned within three weeks from today. The amount so deposited can be withdrawn by the plaintiff respondent without furnishing any security." 9. The counsel for the petitioner has stated that he has already complied the order passed by the Court and has deposited a sum of Rs. 10,000/- before the Court below. A perusal of the order passed by the revisional Court dated 14.2.2000 shows that at about 10.40 AM revision was called out, revisionist went to call his counsel but did not turned back. 10,000/- before the Court below. A perusal of the order passed by the revisional Court dated 14.2.2000 shows that at about 10.40 AM revision was called out, revisionist went to call his counsel but did not turned back. The Presiding Officer has waited up to 2.35 PM and then dismissed the revision. 10. As will appear from the restoration application that it was moved on the same day at 3.45 PM. It appears that the application was rejected in a hurried manner. The application was presented on the same day at 3.45 PM, the revisional court, therefore, should have proceeded for hearing of the revision on merits. It was not the case of the parties that the petitioners were not present on the said date. 11. It is established law that while deciding the application for restoration, the past conduct of the revisionist is not relevant and the Presiding Officer should have taken into consideration the events which have prevented the petitioner to participate on the date of hearing in view of the judgment of Allahabad High Court in the case Surendra Kumar vs. Rajendra Kumar Agrawal ARC 1989 (2) 262. It has been held as under: "In each case depending upon the merits and sufficiency of the reasons for allowing the adjournment, the court has to exercise its discretion and having exercised its discretion it is not imperative for the Court to go into the past conduct that in view of several adjournments having granted, no adjournment can be allowed. Circumstances may be there which may prompt the Court to allow the adjournments. " 12. The Presiding Officer while rejecting the restoration application has not considered the circumstances that restoration application was presented on the same date, the court below has only proceeded on the assumption that since 11.7.95 the petitioner is obtaining adjournments on various occasions. However, the impugned order is silent with regard to the presentation of the application on the same day. 13. In the case Girdhari Lal vs. 1st Additional District Judge, Agra, ACR 1999 (1) 167, it has been held by the Allahabad High Court that the Court should not take a very narrow and rigid view and technicalities should not be allowed to come in the way of dispensation of justice. 14. In view of the aforesaid facts the parties have agreed that the revision may be directed by the Court expeditiously. 15. 14. In view of the aforesaid facts the parties have agreed that the revision may be directed by the Court expeditiously. 15. The amount which has already been deposited in pursuance of the order of Allahabad High Court shall remain in deposit and the same shall be subject to the result of the revision. 16. In view of the fact that the revision requires to be decided on merits by the revisional Court, the revisional Court is directed to decide the revision within a period of four months from the date of the receipt of the certified copy of the order. 17. In the result the writ petition is allowed, the impugned orders dated 14.2.2000 and 6.4.2000 are quashed. No order as to costs.