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2013 DIGILAW 111 (ALL)

Sohan Singh v. Ram Kumar

2013-01-09

RAJES KUMAR

body2013
Rajes Kumar, J.;— Heard learned counsel for the parties. It appears that respondent's hand has been cut during the operation of threasher owned by Ram Rakshpal Singh, father of the petitioner, on account of his negligence. The respondent filed a suit against Ram Rakshpal Singh being suit no. 219 of 1993 for damages. The said suit has been decreed vide order dated 6.8.2002. Sri Ram Rakshpal Singh filed an application under Order 9 Rule 13 C.P.C. for recalling of the order on 1.7.2003 after ten months mainly on the ground that earlier the case was in the Court of Additional Chief Judicial Magistrate, Budaun which has been subsequently transferred to Civil Judge (Senior Division), Budaun and he could not get knowledge about the said transfer inasmuch as no notice has been issued by the transferred court which resulted in passing of an ex-parte order. The petitioner moved an application under Order 9 Rule 13 C.P.C. along with an application under Section 5 of the Limitation Act before the Civil Judge (Senior Division), Budaun. The Civil Judge (Senior Division), Budaun has rejected the application under Section 5 of the Limitation Act as well as the application under Order 9 Rule 13 C.P.C. The Civil Judge (Senior Division), Budaun has held that Sri Ram Rakshpal Singh came to know about the order on 22.1.2003 when the execution proceedings were initiated and a notice for Kurki has been sent. No explanation has been given for the delay between 22.1.2003 to 28.5.2003 for a period of four months. Against the order of the Civil Judge (Senior Division), Budaun, the petitioner filed revision no. 44 of 2005 which has been dismissed vide order dated 7.1.2010. Being aggrieved by the said order, the present revision is being filed. The writ petition has been got reported on 18.12.2012 and the same has been filed on 3.1.2013 beyond by time for more than two years. The laches has been explained in the following paragraphs of the writ petition: "Against the impugned order dated 7.4.2005 passed by the learned Civil Judge, Budaun in Misc. Case No. 67 of 2003 and order dated 7.1.2010 passed by the learned ADJ Court No. 11nd Budaun in Civil Revision No. 44 of 2005, the father of the petitioner late Ram Rakshpal Singh had approached to this Hon'ble Court and got reported Civil Misc. Case No. 67 of 2003 and order dated 7.1.2010 passed by the learned ADJ Court No. 11nd Budaun in Civil Revision No. 44 of 2005, the father of the petitioner late Ram Rakshpal Singh had approached to this Hon'ble Court and got reported Civil Misc. Writ Petition under Article 226/227 of the Constitution of India on 27.5.2010 vide reporting no. 72 through his counsel Sri R.P.S. Chauhan, Advocate. After getting report, the said writ petition was not immediately filed in the registry of this Hon'ble Court and in the evening of 27.5.2010 late Ram Rakshpal Singh went to his home at Budaun for arranging some necessary documents and informations about the case. He had requested to his counsel not to file his writ petition and argue the case till his comeback shortly on first working day after the summer vacation. After 27.10.2010 summer vacation was going started in this Hon'ble Court as such in case of filing the said writ petition in the registry it could be listed before the Court after summer vacation in the first week of July, 2010. However, in the meantime on 7.6.2010 after 11 days from reporting the aforesaid writ petition, late Ram Rakshpal Singh father of the petitioner died. In the month of June, 2010, the counsel of late Ram Rakashpal Singh, namely, Sri R.P.S. Chauhan Advocate has got received information about his death consequently he did not file the aforesaid reported writ petition dated 27.5.2010 before this Hon'ble Court. The petitioner is the only son and legal heir of late Ram Rakshpal Singh but he was unaware about the proceedings of the instant case. Moreover, in the year 2011 the petitioner has become seriously injured in road accident and his serious surgery was done by the doctors and he remain under long treatment upto about one and half year. Thereafter on 15.10.2012 the concerned collection Amin of Tehsil Bilsi had arrived at the residence of the petitioner and informed him about the issuance of Recovery Certificate and proposed auction proceedings of land in pursuance of impugned courts orders. Thereafter immediately on 17.10.2012 the petitioner had approached the District Court Budaun and made inquiry about the instant case and then he came to know about the proceedings of the instant case and the impugned orders. Thereafter immediately on 17.10.2012 the petitioner had approached the District Court Budaun and made inquiry about the instant case and then he came to know about the proceedings of the instant case and the impugned orders. Thereafter the petitioner enquired the documents of his late father available in his home in a box and got some documents regarding filing writ petition in High Court Allahabad through Sri R.P.S. Chauhan, Advocate consequently the petitioner telephonic contact through the clerk of Sri R.P.S. Chauhan Advocate on 29.10.2012 and made enquiry about the case filed by his father who informed him that the reported writ petition could not be filed due to death of his father and he further advised him to came Allahabad along with the death certificate of his father and other documents. Consequently on 31.10.2012 the petitioner came at Allahabad and met counsel of his father Sri R.P.S. Chauhan Advocate who advised him to file fresh writ petition before this Hon'ble Court consequently the petitioner has engaged him his counsel who drafter the instant writ petition and the same is being filed after completing all the requisite formalities. The delay so occasioned in filing the instant writ petition is due to aforesaid bonafide reasons not deliberately and the same is liable to be condoned by this Hon'ble Court in the interest of justice." I have considered the submissions of the learned counsel for the petitioner and considered the reasons for the delay. I am not satisfied with the reasons given for the delay. There is no material to show that the writ petition was got reported on 27.5.2010. The explanations given are only just for the sake of explanation, which is only a bald explanation. It is a clear case of gross negligence and laches. Therefore, the delay is not liable to be condoned. More so, the conduct of the petitioner shows that he participated in the suit but he did not appear lateron. The application under Order 9 Rule 13 C.P.C. was filed beyond time. The delay has not been properly explained. In view of the above, I decline to entertain the writ petition on the ground of laches. The writ petition fails and is dismissed. _____________