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Dulare @ Ram Dulare And Ors v. Addl. Judge Small Causes Court And Ors - WRIT - C No. 194 of 1999  RD-AH 3212 (13 February 2006)
HON. SHISHIR KUMAR, J.
The present writ petition has been filed for quashing the orders dated 29.10.1991, 3.10.1994 and 5.11.1998 passed by respondent no.1, Annexures-3, 7 and 10 to the writ petition.
The brief facts arising out of the present writ petition are that respondents no. 3 to 5 filed a suit for injunction bearing suit No.769 of 1984 for permanent injunction restraining the defendants-petitioners from interfering in the possession of the land shown in the plaint. The trial Court -vide its order dated 9.9.1987 has decreed the suit. Aggrieved by the aforesaid judgment and decree, the petitioners filed an appeal. The appeal was dismissed for default in the absence of the petitioners on 29.10.1991. The same has been rejected vide its order dated 3.10.1994. Aggrieved by the aforesaid order the petitioners have also filed a review application and the same has also been dismissed. Then the petitioners have filed the present writ petition for quashing the aforesaid order. The ground taken in the application for setting aside the order-dated 29.10.1999 is that due to the reference in the district courts the case could not be taken up on 29.10.1991. When the petitioners asked about the next date from the Bench Secretary of the Presiding Officer, date,16.12.1991 was intimated and the petitioners has noted this date. But subsequently it has been informed that the wrong date has been noted and the case has been dismissed on 29.10.1991. A prayer in the said application was also made that in case the Court finds that there is some delay, the same may be condoned but the trial court without considering the aforesaid fact was pleased to reject the application only on the ground that no separate application under Section 5 of the Limitation Act has been filed and there is no prayer in the application for condoning the delay. The reasons stated in the application is not satisfactory, therefore, the court has dismissed the said application -vide its order dated 3.10.1994.
It has further been submitted that due to the wrong information given by the court, the petitioners had noted the wrong date and there is no fault on the part of the petitioners and the court should have taken into consideration the fact that the appeal filed by the petitioners has been dismissed without affording opportunity to the petitioners and it will be in the interest of justice to hear the matter on merits. The lower appellate court has wrongly dismissed the application filed on behalf of the petitioners.
I have heard the learned counsel for the parties and have also perused the record. From the perusal of the application filed on behalf of the petitioners it has clearly been mentioned that due to wrong information, the wrong date has been noted and as soon as the petitioners came to know that the case has already been dismissed on 29.10.1991, an application for recall of the said order was filed stating therein that as the wrong date has been noted, therefore, this mistake has been committed. It is also found from the application that the petitioners have prayed that if the Court comes to the conclusion that there is any delay, the delay may be condoned and the matter may be decided on merits. But from the order dated 3.10.1994 it appears that the application of the petitioners has been rejected only on the ground that no separate application under Section 5 of the Limitation Act for condoning the delay has been filed and there is no prayer, therefore, the application is dismissed on the ground of limitation. After careful perusal of the record, I am of opinion that the ground mentioned in the application was sufficient and the court below should have taken into consideration the fact that that interest of justice demands that a party should not be precluded to plead his case on merits. The Courts should not take very technical view when the Court is deciding an application for restoring a case. It is also seen that there was not any unreasonable delay in making application for recall of order 29.10.1991. The Court should have taken the fact that appeal be decided on merits after affording an opportunity to parties.
In view of the aforesaid fact the writ petition is allowed. The orders passed by the court below dated 29.10.1991 and 3.10.1994 are hereby set aside and the lower appellate court is directed to hear the appeal filed by the petitioners after affording an opportunity to the petitioners on merits. No order as to costs.
W.P. 194 of 1999
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