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Kiran Devi v. State Of U.P. Thru' Secretary, Min. Of Revenue & Others - WRIT - C No. 9042 of 2004 [2006] RD-AH 3808 (17 February 2006)


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                                                                                       Court No.38

Civil Misc. Writ Petition No. 9042 of 2004

Kiran Devi Versus              State of U.P. & others

Hon'ble Vineet Saran, J

An ex-parte decree under Section 229-B of the U.P. Z.A. & L.R. Act was passed in favour of the predecessor-in-interest of the petitioner on 30.11.1985. The respondents no. 4 and 5 thereafter on 10.12.1985 filed an application for recalling/setting aside the said order dated 30.11.1985. During the pendency of the restoration application, one of the ex-parte decree holder expired and before the substitution of the said Baijnath could be decided, the other ex-parte decree holder also expired. The substitution applications remained pending and in the meantime the application for restoration was also dismissed in default by order dated 28.10.1988, which order was subsequently recalled. Now the question which remains is with regard to the substitution and restoration of the ex-parte decree. By an order dated 7.11.2003 the respondent no. 3 decided the substitution matter and directed that the restoration be proceeded with. However, the petitioner filed revision against the said order, which has been dismissed by the revisional court on 20.1.2004. Aggrieved by the aforesaid orders dated 7.11.2003 and 20.1.2004 passed by respondents no. 3 and 2 respectively, the petitioner has filed this writ petition.

I have heard S/Sri Radhey Shyam and Arvind Singh, learned counsel appearing for the petitioner as well as Sri V.K.Singh, learned counsel appearing for the contesting respondents and have perused the record. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.

The matter has been pending for the last more than 20 years. The delay has been caused because during the pendency of the restoration application several parties died and the substitution applications could not be decided. Now by the impugned order dated 20.1.2004 the respondent no. 2 has directed that the matter relating to the restoration and recall of the judgment dated 30.11.1985 be decided on day-to-day basis within a period of two months. The Court had also fixed a date for appearance of both the parties before the trial court.

Having perused the judgment and considering the facts and circumstances of this case, I find no good ground for interference with the orders impugned especially in this extraordinary writ jurisdiction under Article 226 of the Constitution of India.

However, since the restoration application of the contesting respondents had earlier also been dismissed which was later on recalled, in my view, the petitioner may be entitled to some costs, which in my opinion is assessed at Rs. 5,000/-.

Accordingly, this writ petition is dismissed but, however, the petitioner would be entitled to payment of Rs. 5,000/- as costs which shall be deposited by the respondents no. 4 and 5 before the trial court on or before 23.3.2006. It is further directed that both the parties shall appear before the trial court on 23.3.2006. The trial court shall permit the petitioner to withdraw the said amount. The trial court shall thereafter proceed to decide the restoration application on day-to-day basis, preferably within two months.




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