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2016 DIGILAW 1778 (ALL)

Pankaj Kumar v. Hari Singh

2016-05-09

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Pradeep Kumar Rai for the petitioner. 2. This petition has been filed for setting aside the orders of Civil Judge (Junior Division) dated 23.10.2013 and Additional District Judge dated 5.3.2016. By the impugned orders the order dated 14.3.2008 dismissing the application under Order 9, Rule 13 CPC in default, has been recalled and the application was restored to its original number and revision filed by the petitioner has been dismissed. 3. In the application for recalling the order as well as in the affidavit filed in support of this, it has been stated that on behalf of applicant, one Jaipal used to do pairvi before the court below. Jaipal fell ill in September 2007 and was suffering from Hernia as well as Synes due to which no one could appear before the court below and Misc. Case under Order 9, Rule 13 CPC was dismissed in default on 14.3.2008. The application for recall of the aforesaid order was filed on 10.4.2008 which was well within the time. The petitioner has denied the allegation that pairokar was fallen ill and has stated that medical certificate was issued on the pad of Dr. Trilok Chandra Maheshwari although he was dead on the date of issuing the medical certificate. Thus for the purposes of filing the recall application a forged certificate has been procured and false affidavit has been filed. Rejoinder affidavit to the counter affidavit of the petitioner has been filed. In the rejoinder affidavit it has been stated that after death of Dr. Trilok Chandra Maheshwari, his son Dr. Manoj is doing medical practise and he had issued the medical certificate on the pad of Dr. Trilok Chandra Maheshwari. Thus it was the mistake committed by the doctor and not on behalf of the applicant. The court below believed the allegation of the applicant and recalled the order dated 14.3.2008 on the cost of Rs. 800/- and revision filed by the petitioner has also been dismissed. 4. I have considered the arguments of the counsel for the petitioner and examined the records. 5. So far as the allegation that medical certificate which has been issued by the doctor, who was already dead is concerned, it has been explained by the applicant that Dr. 800/- and revision filed by the petitioner has also been dismissed. 4. I have considered the arguments of the counsel for the petitioner and examined the records. 5. So far as the allegation that medical certificate which has been issued by the doctor, who was already dead is concerned, it has been explained by the applicant that Dr. Trilok Chandra Maheshwari was dead and his son was doing practise who has issued the medical certificate on the pad of Dr. Trilok Chandra Maheshwari. The allegation made in the rejoinder affidavit has been believed by the court below. Otherwise also the application is within time and cause for default has been shown the illness of pairokar. Thus that was the sufficient ground for recalling the order and it is not proper for this Court, in exercise of supervisory jurisdiction under Article 227 of the Constitution, to interfere with the sufficiency of cause for recalling the order. 6. The petition has no merit, it is dismissed. Petition dismissed.