Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1845 (ALL)

Ashok Kumar Gupta v. Kailash Kalra

2011-08-02

SHASHI KANT GUPTA

body2011
Shashi Kant Gupta, J.— Learned counsel for the petitioner is permitted to make necessary correction in the prayer part of the writ petition. Learned counsel for the respondent has stated that he has already filed caveat in the matter but the same has not been reported. With the consent of the learned counsel for the parties the writ petition is disposed of finally. The present writ petition has been filed against the orders dated 11.2.2010 and 24.1.2011 passed by the Additional District Judge, Court No. 12, Allahabad in Misc. Case No. 24 of 2010 whereby the restoration application filed by the petitioner for setting aside the order dated 11.2.2010 has been rejected. Brief facts of the case are as follows; A suit for arrears of rent and ejectment was filed by the respondent-landlord which was decreed by order dated 28.7.2005. Being aggrieved and dissatisfied with the said order, the petitioner filed a revision which was registered as Revision No. 565 of 2005. The said revision was dismissed in default by order dated 11.2.2010. Hence a restoration application was filed by the petitioner and the same has been rejected by the court below by order dated 24.1.2011. Hence the present writ petition. Learned counsel for the petitioner submitted that, in fact, the petitioner was suffering from the disease Pyrexia (fever) from 8.2.2010 upto 13.2.2010 and was under treatment, as such, he could not appear before the court below although he had instructed his counsel to seek adjournment but unfortunately, the counsel was busy in some court and he could not seek adjournment, as a result, the revision was dismissed in default. Heard learned counsel for the petitioner, Mr. Rajesh Gupta, learned counsel for the respondent and perused the record. A bare perusal of the impugned order goes to show that the petitioner had been negligent in pursuing the matter and on earlier occasion also the revision was dismissed in default. Later on, it was restored by the court below. However, the contention of the learned counsel for the petitioner that he was ill from 8.2.2010 to 12.2.2010 cannot also be brushed aside without any cogent reasons. The court below should have taken a lenient view of the matter. Learned counsel for the petitioner undertakes that he will not seek any adjournment in the matter. However, the contention of the learned counsel for the petitioner that he was ill from 8.2.2010 to 12.2.2010 cannot also be brushed aside without any cogent reasons. The court below should have taken a lenient view of the matter. Learned counsel for the petitioner undertakes that he will not seek any adjournment in the matter. Considering the facts and circumstances of the case and the submission of the learned counsel for the parties, and also the material available on record, I am of the view that the petitioner should be given one more opportunity to pursue the revision pending before the court below. In view of the above, the writ petition is allowed subject to the payment of cost of Rs. 3,000/- to the plaintiff by the petitioner forthwith. The orders dated 24.1.2011 and 11.2.2010 passed by the courts below are hereby set aside and the court below is directed to decide the revision itself within one month on merits from the date of receipt of a certified copy of this order. _