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2013 DIGILAW 1453 (ALL)

PREM MASIH v. S. K. SOLOMON

2013-05-17

S.U.KHAN

body2013
JUDGMENT Hon’ble S.U. Khan, J.—Even though the case was taken up in the revised list but no one appeared on behalf of the respondent hence only the arguments of learned counsel for the petitioner were heard. 2. The first order challenged through this writ petition is dated 20.5.2010 passed by Civil Judge (Junior Division), City, Meerut in Misc. Case No. 70 of 2008 S.K.Soloman v. Prem Masih. The said case was a restoration application filed by defendant of Original Suit No. 46 of 1994 Prem Mashi v. Rajendra, which had been decreed ex parte on 24.7.2004. Through order dated 20.5.2010 restoration application was allowed. 3. It was stated in the restoration application by the respondent applicant that he was the Secretary of the St. Thomas Church, Meerut and Rajendra was not the Secretary of the said Church since long before. The suit was filed by the tenant petitioner seeking to restrain the landord from forcibly evicting him. It was further stated that defendant landlord came to know about ex parte decree on 28.7.2008. Trial Court held that earlier the suit was dismissed in default on 3.4.1997 thereafter it was restored on 24.4.2001; on 17.1.2002 the Court directed that counsel for the defendant must be informed; accordingly, Shri D.D.Sharma, learned counsel was informed however, Vakalatnama of Shri Sharma was not on record and on behalf of the defendant Vakalatnama of Shri Mohd. Abbas, Advocate was on record. It was also observed that on 24.7.2004 no order on the counter claim of the defendant was passed. It was also mentioned in the order dated 20.5.2010 that delay in filing restoration application had already been condoned. Accordingly, restoration application was allowed. 4. Against the said order plaintiff-petitioner filed Civil Revision No. 206 of 2010. Additional District Judge, Court No. 16, Meerut disposed of, the revision on 20.12.2011 which order has also been challenged through this writ petition by the plaintiff. Revisional Court allowed the revision in part and remanded the matter to the trial Court to decide the restoration application again. 5. The revisional Court has indulged in frivolous exercise of hair splitting. It held that plaintiff petitioner had argued the matter only against delay condonation application hence fresh opportunity to oppose restoration application should have been provided by the trial Court. It held that delay was rightly condoned but thereafter it remanded the matter for consideration of restoration application. 5. The revisional Court has indulged in frivolous exercise of hair splitting. It held that plaintiff petitioner had argued the matter only against delay condonation application hence fresh opportunity to oppose restoration application should have been provided by the trial Court. It held that delay was rightly condoned but thereafter it remanded the matter for consideration of restoration application. In its judgment which runs into 11 typed pages the lower revisional Court thoroughly (rather too thoroughly and repeatedly) discussed the merit of the case and found that the version of the defendant was correct and that even though the plaintiff tenant admitted that property was of the trust still Rajendra in his personal capacity was made defendant in the suit by him. 6. It is mentioned in the impugned order by the revisional Court that property in dispute is a house (belonging to the church) and plaintiff is tenant thereof at the rate of Rs. 12/- per month. It is also mentioned in the impugned order that tenant had lodged First Information Report also against the respondent. 7. Accordingly, I find that the order of the lower revisional Court remanding the matter amounts to luxurious waste of time which in the present scenario the Courts can ill afford. Even though defendant has not challenged the order passed by the revisional Court remanding the matter still exercising the power under Article 227 of the Constitution of India which is meant to do substantial justice the order of remand passed by the lower revisional Court deserves to be set aside. Accordingly, impugned order passed by the revisional Court is set aside to the extent to which it had remanded the matter, the revision is dismissed and order passed by the trial Court allowing the restoration application is restored. 8. As far as the order of restoration passed by the trial Court is concerned, there is absolutely no error therein. When the Court directed that information of the date must be given to the counsel and the Court clerk/peon gave information to the wrong advocate, it was more than sufficient ground for condonation of delay and restoration. The Supreme Court in Keshardeo Chamria v. Radha Kissen Chamria and others, AIR 1953 SC 23 (para 21) has held that while correcting its error the Court need not consider the grounds/objections of the parties. The Supreme Court in Keshardeo Chamria v. Radha Kissen Chamria and others, AIR 1953 SC 23 (para 21) has held that while correcting its error the Court need not consider the grounds/objections of the parties. In this view of the matter the following authorities cited by learned counsel for the petitioner do not support petitioner’s case in the least. 1. Ibrahim v. The Deputy Director of Consolidation and others, AIR 1973 All 378 2. Municipal Corporation of Ahmedabad v. Voltas Limited and etc., AIR 1995 Guj 29 (FB) 3. Forbesganj Jagdish Mill Ltd. v. Kaloram, AIR 1985 Pat. 212 4. M/s Hisaria Plastic Products v. Commissioner of Sales Tax U.P. Lucknow, AIR 1980 All. 185 . 9. The trial Court shall decide the suit and the counter claim on merit after ensuring service on respondent S.K. Soloman. 10. Writ petition is disposed of. —————