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2011 DIGILAW 2622 (ALL)

Baby @ Afroz Jahan v. Prescribed Authority and Others

2011-11-19

RITU RAJ AWASTHI

body2011
Hon'ble Ritu Raj Awasthi, J.: - Notice on behalf of the opposite party no. 1 has been accepted by Mr. Manish Kumar, Advocate. Mr. Shashi Prakash Singh, Advocate has put in appearance on behalf of the opposite party no. 2 and filed Vakalatnama, the same is taken on record. The opposite parties no. 3 & 4 are proforma parties, therefore, no need to issue notice to them. With the consent of parties' counsel, the writ petition is being decided at the admission stage. Heard learned counsel for the parties. The writ petition has been filed challenging the order dated 28.7.2011 passed in P.A. Case No. 5 of 2005 (Smt. Fatima Gajala Vs. Sajid Ali and Others) whereby the application moved under Order IX Rule 7 CPC has been rejected. Learned counsel for the petitioner submitted that the P.A. case was filed by the opposite party no. 2 against the petitioner as well as opposite party nos. 3 & 4. The petitioner had not put in appearance in the said case but on the basis of service on the opposite parties no. 3 & 4, the Court proceeded in the matter. Vide order dated 29.5.2006, the Court had directed to proceed ex-parte against the petitioner. The petitioner had moved an application under Section 34 of the U.P. Act No. XIII of 1972 on 26.5.2011 for setting aside the ex-parte order dated 29.5.2006. The said application of the petitioner has been rejected by the impugned order dated 28.7.2011. It is further submitted by the learned counsel for the petitioner that the learned Court below has taken a view that since there was already service on the opposite party nos. 3 & 4 as such it was sufficient to proceed in the matter. The opposite party no. 3 is the real brother of the petitioner and therefore, she has full knowledge about the pending case. As such the application for recall of the order is not maintainable, which is not sustainable.. Mr. Ram Karan Agrawal, learned counsel for the petitioner further submitted that the petitioner has been authorized to live in the house in question. She is an interested party in the case and in case no opportunity of hearing is provided to her, irreparable loss and injury would be caused to her. Mr. Shashi Prakash Singh, learned counsel for the opposite party no. She is an interested party in the case and in case no opportunity of hearing is provided to her, irreparable loss and injury would be caused to her. Mr. Shashi Prakash Singh, learned counsel for the opposite party no. 2 on the other hand submitted that the petitioner being the real sister of the opposite party no. 3 was fully aware about the pending case before the Prescribed Authority. She had deliberately avoided to put appearance and participate in the proceedings. The application dated 26.5.2011 was misconceived and therefore, it was rightly rejected. I have considered the submissions made by the parties' counsel. I am of the view that in the interest of justice full opportunity should be given to the parties to the proceedings to make their submissions in the case. It would be appropriate that the petitioner is provided an opportunity to put her case before the Court concerned. The matter appears to be at the final stage. In this view of the matter, with the consent of parties' counsel and without entering into the merits of the case, the writ petition is disposed of finally with the direction that the learned Court below shall permit the petitioner to submit her written statement and provide her opportunity of hearing before proceeding in the matter. However, the petitioner shall not take unnecessary adjournments and she will cooperate in early disposal of the case. Learned counsel for the petitioner has given an undertaking to that effect. Learned Court below is directed to make all possible endeavour to decide the pending case, expeditiously, say within a period of three months from the date a certified copy of this order is produced before him. With the aforesaid direction, the writ petition is disposed of.