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M/S Rakesh Provender Mills & Another v. State Of U.P. Thru' Animal Huhusbandry & Others - WRIT - C No. 46883 of 2003 [2007] RD-AH 11914 (13 July 2007)


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(Court No. 23)

Civil Misc. Writ Petition No. 27268 of 2003

State of U.P and others Versus M/s Rakesh Provinder Mills Ghaziabad.


Civil Misc. Writ Petition No. 46883 of 2003

M/s Rakesh Provinder Mills, Ghaziabad and another Versus State of U.P and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

M/s Rakesh Provinder Mills respondent in the first writ petition and petitioner No.1 in the second writ petition filed suit for recovery of money against State of U.P through Collector Ghaziabad and other authorities, which was numbered as O.S. No. 68-A of 1989. In the suit defendants filed an application for appointment of Arbitrator which was rejected on 31.8.1990. Against the said order defendants filed FAFO No. 1285 of 1990 in this High Court which was later on transferred to the District Judge for disposal. FAFO was allowed on 4.9.2003 by A.D.J Ghaziabad. However, in Misc. Appeal /FAFO there was no stay order, hence, proceedings of the suit continued. It is stated by learned counsel for M/s Rakesh Provinder Mills that 96 dates were fixed for filing written statement still written statement was not filed by the respondent. Accordingly, suit was decreed exparte on 17.5.1996 by Civil Judge, (SD) Hapur, Ghaziabad. The suit was decreed for recovery of Rs.154367.90/- with 18% annual interest with effect from the date of filing of the suit till the date of recovery. For getting the ex-parte decree set-aside, defendants filed restoration application under Order 9 Rule 13 CPC on 30.10.1996, which was dismissed in default on 29.1.1998. Thereafter, an application for setting aside the order dated 29.1.1998 was filed on 6.10.1998. The said application was rejected on 23.12.1999. In the said order, it is mentioned that no sufficient ground for condonation of delay in filing application dated 6.10.1998 had been given. Against order dated 23.12.1999 an appeal was filed on 1.7.2000. The said appeal was registered as Misc. Appeal No. 35 of 2001, State of U.P Vs. Rakesh Provinder Mills. I Additional Civil Judge, Ghaziabad rejected the said Misc. Appeal on 11.2.2003, giving rise to the first writ petition.

As stated above Misc. Appeal/ FAFO filed by respondent State against order of the trial court rejecting their application for appointment of arbitrator was allowed on 4.9.2003. The second writ petition has been filed by M/s Rakesh Provinder Mills against the said order.

As far as second writ petition is concerned, it deserves to be allowed on the ground that as the suit itself had been decided and restoration application had also been dismissed, hence, the interim order against which the said Misc. Appeal /FAFO was filed did not remain in existence, it merged in the final judgement and decree. All interim orders merge in the final judgment and decree.

As far as first writ petition filed by the State is concerned, I do not find any fault in the orders impugned therein. It is correct that in restoration and delay condonation matters, courts ought to be somewhat lenient. It is also correct that some extra latitude is often granted by the courts to the State and State agencies. However, if State does not file written statement even after seeking 96 adjournments then no latitude is warranted. State completely failed to make out any case for condonation of delay or restoration. The extremely negligent attitude in pursuing the litigation was exhibited by the State authorities at every juncture. Written statement was not filed inspite of 96 adjournments. Thereafter no one appeared on behalf of State and suit was decreed ex-parte. Restoration application was filed beyond time hence that was liable to be dismissed. Recall application was again filed beyond time. Each and every aspect of the case has been taken into consideration by the courts below hence I do not find any error in the impugned orders. First writ petition is therefore deserves to be dismissed. However one aspect requires consideration.

On 10.5.2007, I suggested to the learned counsel for both the parties to persuade their clients to settle the matter through compromise. Learned counsel for the plaintiff categorically states that the plaintiff is ready to accept any reasonable compromise suggested by the court. Sri N.P.Pandey learned standing counsel states that he contacted the authorities concerned., however, the authorities concerned contacted by him told him that they were not in a position to accept any compromise.

It is not disputed that State Judgement Debtor has deposited a draft dated 22.2.2007 of Rs.682302/- before the Civil Judge, (SD) Hapur. It was deposited shortly after it was got prepared. The said amount covered the decreetal amount alongwith decreed interest uptil 31.1.2007. On the suggestion of the court learned counsel for the plaintiff decree holder after some initial hesitation ultimately agreed to accept Rs.600000/- in full and final satisfaction of the claim which was decreed. A faint argument regarding security was raised by the learned counsel for decree holder, however, there is no mention of any security in the ex-parte judgment of the trial court, hence, nothing can be said about that.

Accordingly Civil Judge (SD) Hapur district Ghaziabad is directed to immediately release Rs.600000/- in favour of the decree holder and remaining amount of Rs.82302/- in favour of the State. The needful shall be done within a month from the date of receipt of copy of this order.

Accordingly, first writ petition is disposed of and second writ petition is allowed.




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