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Ajit Singh Jassar v. State Of U.P. & Others - WRIT - B No. - 40063 of 2005  RD-AH 16475 (9 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon. Janardan Sahai,J
The petitioner purchased some land by sale deed dated 13.5.03. Proceedings under Section 47A of the Indian Stamp Act were initiated against the petitioner. The case was decided ex parte by the order dated 22.11.03 passed by the Addl. Collector ( F & R). The petitioner filed an application for setting aside the ex parte order. The application was rejected by the order dated 18.9.04 of the Addl.Collector. Against the order the petitioner filed two appeals, which have been dismissed by the order dated 4.3.05 passed by the Board of Revenue. Against these orders the petitioner has filed the present petition. The notice is alleged to have been served by Vinod Kumar, the Process Server who stated that the summons were tendered to the petitioner Ajit Singh at his farm house and they were refused by the petitioner as well as by his Munim. An affidavit filed in support of the restoration application has been filed with the supplementary affidavit. It is stated therein that no notice was served upon the petitioner and that he lives in his house Newari Road, Modi Nagar, Ghaziabad and not at Surajpur where the notice is said to have been tendered. No counter affidavit to the petitioner's affidavit was filed. It is submitted by Sri B.D.Mandhyan counsel for the petitioner that the affidavit of the petitioner was not rebutted by any counter affidavit and as such the averments made therein ought to be believed. In support of his contention he placed reliance upon the decisions"- Lajja Ram 1999 ALR 737 and 2005 RD 431 Deo Narain Vs. Addl.Collector.
It is not in dispute that no counter affidavit was filed to the restoration application. It is also contended that there was no witness when the summons are said to have been refused by the petitioner. In the facts and circumstances, as the affidavit of the petitioner was unrebutted, it appears appropriate that one opportunity be granted to the petitioner. Accordingly the writ petition is allowed and the exparte order dated 22.11.03 as well as the order rejecting the restoration application of the petitioner dated dated 18.9.04 and the order dismissing the appeals on 4.3.05 be set aside and the case be heard afresh on merits. However the respondents are entitled to be compensated by costs. In the circumstances, I assess a sum of Rs.10,000/- as sufficient costs. The petitioner may deposit the costs before the Addl.District Magistrate ( Finance), respondent no.2 within six weeks from today.
The writ petition is accordingly allowed. The orders dated 22.11.103, 18.9.04 and 4.3.05 are set aside. The case is sent back to the Addl. Collector for fresh decision. Counsel for the petitioner states that the petitioner will not take any adjournment. However if the costs are not deposited by the petitioner within the time aforementioned, the writ petition shall stand dismissed.
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