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Rajendra Prasad Pandey v. Baberu Madhya Krishak Sewa Sahkari Samiti Ltd. - WRIT - A No. 23210 of 2006 [2006] RD-AH 8622 (28 April 2006)


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Court No. 28

Civil Misc. Writ Petition No. 23210 of 2006

Rajendra Prasad Pandey


Baberu Madhya Krishak Sewa Sahkari Samiti Ltd.

Hon'ble Krishna Murari, J.

Heard Sri Sanjay Kumar Srivastava, learned counsel for the petitioner. The facts in brief relevant for the purpose of the case are that SCC Suit filed by the respondent-landlord against the tenant-petitioner for arrears of rent and ejectment was decreed ex parte vide judgment dated 20.11.1992. The tenant-petitioner moved an application dated 6.1.1994 under Order 9, Rule 13 C.P.C for recall of the said order. The application came to be dismissed in default on 28.1.1995. Another application dated 7.8.1995 was moved by the petitioner for recalling the order dated 28.1.1995. This application also came to be dismissed in default on 20.10.1995. Again, an application was moved on 9.11.1995 to recall the same, this application was also rejected for non-appearance of the petitioner on 23.2.1996. Yet another application dated 15.4.1996 was moved by the petitioner for recalling the said order. The application dated 15.4.1996 was also dismissed in default on 10.1.1997. The tenant-petitioner moved another application dated 16.1.1997 for recall of the said order.

The Judge Small Causes Court, Banda vide order dated 23.4.1999 allowed the application dated 16.1.1997 and recalled the order dated 10.1.1997 rejecting earlier restoration application. Thereafter,the Judge Small Causes Court vide order dated 6.3.1998 rejected the restoration application dated 15.4.1996 against which tenant-petitioner preferred a revision. The revisional court vide order dated 29.7.1998 allowed the revision on payment of Rs. 100/- as cost. Thereafter, the application dated 9.11.1995 which was moved by the tenant-petitioner to recall the order dated 20.10.1995 was heard and dismissed by the trial Court. The petitioner again went up in revision. The revisional court vide order dated 19.9.2005 allowed the same on payment of Rs. 1000/- as cost. In pursuance to the remand order the application dated     7.8.1995 was restored to its original number and heard by the Judge Small Causes Court, Banda and was rejected on 21.10.2005. Revision filed by the petitioner against the said order has also dismissed by the revisional court on 23.3.2006.

The application filed by the petitioner to recall the ex parte order has been dismissed by the trial court on the ground that medical certificate in support of the contention that he could not appear on date fixed was filed after 10 years of moving the application. The trial court has further found that from a perusal of the medical certificate it does not appear to be 10 years old document and seems to have been procured recently. The same finding has been confirmed by the revisional court.

A perusal of the entire facts clearly go to show that the petitioner has grossly misused the process of law by moving successive applications. He has successfully delayed the execution of the decree for more than 13 years. His conduct of moving successive applications and allowing them to be dismissed in default is nothing but a gross abuse of the process of the Court. Even otherwise there is nothing on record that the petitioner had complied with the provisions of section 17 of the Small Causes Court Act while moving application under Order 9 Rule 13 C.P.C. and thus also the said application filed by him was not maintainable.

In view of the facts mentioned aforesaid and the findings recorded by the courts below there is no scope for interference in the impugned judgments. The writ petition accordingly fails and is dismissed in limine.

Dt. 28.4.2006


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