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Rajasthan High Court · body

2018 DIGILAW 2072 (RAJ)

Kum Divya Gahlot v. Manavendra Singh Gahlot

2018-10-08

ALOK SHARMA

body2018
ORDER : Matter comes up on an application under Article 226 of the Constitution of India for dismissal of the petition on the basis of the order dated 26.11.2016 passed by the trial court. S.B. Civil Writ Petition No. 11409/2009 was filed before this Court impugning the order dated 17.7.2009 passed by the trial court in Suit No. 47/2004 titled Kumari Divya & Anr. Versus Manvendra Singh & Anr. On the matter coming up before this Court in the aforesaid petition, while issuing notice, it was directed that “in the meantime the operation of the impugned order dated 17.7.2009 shall remain stayed”. The writ petition was however per-emptorily dismissed for non compliance with the court’s order dated 11.1.2012. S.B. Writ Restoration Application No. 638/2017 thereon came to be filed. For the reasons stated in the application, it was allowed vide order dated 1.12.2017 and the registry was directed to restore the petition to its original number subject to filing of PF and notices, as earlier directed by the Court, within a period of two weeks. It is that order which is fundamentally now in issue. Mr. Jai Raj Tantia appearing for the respondents submitted that as on 1.12.2017 when the writ petition was restored, the underlying suit no. 47/2004 had been dismissed in default for non prosecution by the trial court on 26.11.2016. He submitted that in this view of the matter when the matter came up for restoration of writ petition before this Court on 1.12.2017 in the context of challenge laid therein to an order passed in Civil Suit No. 47/2004, the writ petition could not have been restored as the petition was apparently infructuous. Mr. SN Kumawat, appearing for the petitioners very fairly submitted that indeed the underlying suit was dismissed in default for non prosecution on 26.11.2016. He submitted that however neither the petitioner was aware of the aforesaid fact nor he could inform his counsel appearing before this Court in the writ petition. Hence the aforesaid fact could not be brought to the court’s notice. Mr. Kumawat however submitted that an application for recall of the order dated 26.11.2016 passed by the trial court has since been moved and it is pending. He therefore sought a short adjournment. Heard. Considered. Hence the aforesaid fact could not be brought to the court’s notice. Mr. Kumawat however submitted that an application for recall of the order dated 26.11.2016 passed by the trial court has since been moved and it is pending. He therefore sought a short adjournment. Heard. Considered. Whatever will be outcome of the application for recall of the order dated 26.11.2016 passed by the trial court, I am of the considered view that on 1.12.2017 when the Writ Petition No. 11409/2009 was restored by this Court, the writ petition was infact infructuous in view of the underlying suit having earlier been dismissed in default for non prosecution. Consequently, I would recall the order dated 1.12.2017. S.B. Civil Writ Petition No. 11409/2009 thus presently would have to be treated to have been dismissed for non compliance with the court’s order dated 11.1.2012. However, in view of the fact, as Mr. SN Kumawat submitted, that an application for recall of the order dated 26.11.2016 has been filed before the trial court, I would in the interest of justice direct the registry to list the restoration application no. 638/2017 before this Court on 13.11.2018 at 2.00 PM for consideration afresh. Application stands disposed of accordingly.