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Tribhuwan Chaubey v. Appar Ayukt (Prashasan), Varanasi Mandal Varanasi & Others - WRIT - C No. 9055 of 2006 [2006] RD-AH 11998 (21 July 2006)


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Court No. 5

Civil Misc. Writ Petition No. 9055 of 2006

Tribhuvan Chaubey               ... ...... ......... Petitioner


Appar Ayukt (Preshasan) Varanasi Mandal  

Varanasi and others       ............ .......... Respondents


Hon'ble Janardan Sahai, J

A suit under Section 229-B of the U.P. Zamindari Abolition & Land Reforms Act was filed by respondent no.3 Sri Kant. The petitioner was a defendant in the suit. The petitioner appeared and filed his written statement. The statements of the plaintiff's witnesses were recorded.  The petitioner thereafter absented and an order to proceed exparte was passed on 1.5.1997.  An exparte decree was passed on 26.11.1997. The petitioner filed an application on 8.7.1998 for setting aside the exparte decree. It was alleged that he had entrusted pairvy of the case to a relative and to his counsel as the petitioner was living in Delhi but the pairokar and his counsel failed to do pairvy and when the petitioner came home to Jaunpur on 6.7.1998 he came to the court on 8.7.1998 and enquired from his counsel about the position of the case and came to know that he was not doing pairvy whereupon the file was inspected and the petitioner came to know about exparte decree dated  26.11.1997. The application was accompanied by an application under Section 5 of the Limitation Act. The delay condonation application was rejected on 12.1.2001. The petitioner filed a revision against the order, which was dismissed by the Additional Commissioner by order dated 26.12.2005. Both the orders are impugned in this writ petition.

I have heard Shri A.N. Bhargava assisted by Shri R.K. Tiwari for the petitioner and Shri C.K. Rai for respondent no.3.

It was submitted by Shri Bhargava that the courts below have adopted erroneous approach in deciding the delay condonation application in that the application has been rejected on the ground that each and every days delay has not been explained.  It was submitted that there was sufficient explanation for the absence of the petitioner inasmuch as the petitioner was in Delhi and he had entrusted pairvy of the case to a relative and to his counsel but they failed to do pairvy.

Shri C.K. Rai, counsel for respondent no.3 submitted that although the petitioner was living in Delhi but he was coming to Jaunpur frequently and was doing pairvy of the case and as such the case set up by the petitioner is false. He has also referred to the order sheet dated 10.10.1994 in which he submits there is a recital that the parties were present.

The fact that the petitioner was present in October 1994 does not discredit the petitioner's case. The order to proceed exparte was passed long thereafter on 1.5.1997. The fact that after the written statement was filed, the petitioner had been appearing rather indicates that he was doing pairvy of the case in that period and was diligent. Counsel for respondent no.3 does not dispute that the petitioner had been living in Delhi.  In the circumstances the petitioner's case that he had entrusted the pairvy of the case to his relative and to his counsel cannot be disbelieved on the ground that he was earlier present on certain dates.  There is nothing in the orders of the courts below to indicate nor anything has been shown to indicate that dilatory tactics was being adopted by the petitioner or his absence was malafide.  The petitioner's explanation therefore cannot be disbelieved as the facts are in his special knowledge and there is nothing to believe them. If his explanation is accepted, the delay stands explained.  The view taken by the courts below that the petitioner has not explained each and every days delay and that the explanation given was unworthy of credit cannot be upheld.  The respondent can be compensated by costs. In the result the writ petition is allowed. The orders of the courts below dated 26.12.2005 (Annexure-5 to the writ petition) of respondent no.1 and dated 26.11.1997 (Annexure-1 to the writ petition) of respondent no. 2 are hereby quashed. In the facts and circumstance I assess a sum of Rs.5,000/- (five thousand) as costs to be paid to the respondent no.3. The petitioner shall deposit the costs in the trial court within a period of six weeks from today. In case of default in making the deposit, the writ petition shall be deemed to have been dismissed and the orders of the courts below shall stand revived.  Costs so deposited by the petitioner shall be given to respondent no.3. Should the costs be deposited within the time granted by this court, the trial court shall proceed with the suit and shall try to dispose it of expeditiously and if possible within a period of six months from the date of deposit of costs.

Dt. 21.7.2006



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