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2010 DIGILAW 414 (UTT)

VIRENDRA PAL SINGH v. VEER VIKRAM SINGH

2010-06-30

V.K.BIST

body2010
JUDGMENT Present writ petition has been filed by the petitioners for the following reliefs : “(i) Issue a writ order or direction in the nature of certiorari quashing the impugned order dated 04.02.2010 (Annexure No. 8 to the writ petition) passed by learned Additional District Judge, Roorkee in Civil Misc. Appeal No. 04 of 2009, Virendra Pal Singh and others Vs. Veer Vikram Singh. (ii) Issue a writ order or direction in the nature of mandamus directing the learned Court below to allow the application dated 17.01.2009 (Annexure No. 5 to this writ petition) filed by the petitioners. (iii) Pass any other and further orders which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. (iv) Award the cost of writ petition to the petitioners.” 2. Brief facts of the case are that on 29.05.2007 respondent/plaintiff instituted O.S. No. 78 of 2007 before Civil Judge (Sr. Div.), Roorkee. Learned Civil Judge (Sr. Div.), Roorkee decreed the suit on 14.02.2008 and petitioners/defendants were directed to remove their possession from the property in question within a period of two months. Against the decree dated 14.02.2008 the petitioners/defendants preferred Civil Appeal No. 06 of 2008 before the Additional District Judge, Roorkee. The petitioners/defendants also filed an application for staying the operation of judgment and order dated 14.02.2008. The appeal was fixed for 05.12.2008 but on that day the petitioner no. 1/defendant no. 1 fell ill and could not appear before the court. On 05.12.2008 the learned Additional District, Judge, Roorkee dismissed the appeal in default. After recovering from illness the petitioner no. 1/defandant no. 1 moved an application on 17.01.2009 for recalling the order dated 05.12.2008. Alongwith his recall application the petitioner no. 1/defendant no. 1 also filed medical certificate. In his application the petitioner no. 1 submitted that his non-appearance on 05.12.2008 was not deliberate and was due to reason of sudden illness. The respondent/plaintiff filed his objection against the recall application stating therein that petitioners/defendants deliberately remained absent on the date fixed and this was done by them only for the purpose of delaying the mater. On 04.02.2010 the learned Additional District Judge rejected the application. 3. Learned counsel for the petitioner submitted that there was only 13 days delay in filing the recall application which was sufficiently explained by him but the learned Additional District judge without any valid reason rejected the application. On 04.02.2010 the learned Additional District Judge rejected the application. 3. Learned counsel for the petitioner submitted that there was only 13 days delay in filing the recall application which was sufficiently explained by him but the learned Additional District judge without any valid reason rejected the application. He submitted that the medical certificate clearly shows that petitioner no. 1 was actually suffering from typhoid from 05.12.2008 to 14.01.2009. He further submitted that petitioner no. 1 was the pairokar of other remaining petitioners and due to this reason other petitioners also could not appear on the date fixed. 4. After hearing learned counsel for the parties and after examining the record, I find that reason given by the petitioner no. 1 for non-appearance on 05.12.2008 was justified. Medical Certificate issued by the doctor advised him complete rest. Doctor also advised him not to perform his normal duties from 05.12.2008 to 14.01.2009. Reasons for delay in filing recall application were sufficient to allow delay condonation application. Thirteen days delay in filing recall application on the ground of illness should have been allowed by the learned Additional District Judge, Roorkee. 5. In view of the above discussion, the writ petition is allowed. Order dated 04.02.2010 passed by learned Additional District Judge, Roorkee in Civil Misc., Appeal No. 04 of 2009 is quashed. Application No. 6C/1 dated 17.01.2009 filed by the petitioners under Section 5 of Limitation Act is allowed. Recall application filed by the petitioners on 17.01.2009 before the Additional District Judge, Roorkee is treated to be filed within time. Since respondent is 83 years old, the Judge concerned is directed to decide the aforesaid recall application at the earliest. If appeal is restored, the Judge concerned is further directed to decide the appeal expeditiously, preferably within a period of three months from the date of production of certified copy of the order. 6. No order as to costs.