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Chandrika v. Ii-A.D.J. And Ors - WRIT - C No. 6004 of 1998 [2006] RD-AH 1816 (24 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 31

Civil Misc. Writ Petition no. 6004 of 1998

Chandrika vs. Raj Kumar and ors.

...

Hon'ble Bharati Sapru, J.

List is revised. Learned counsel for the petitioner is present. Learned counsel for the respondents is not present.

The facts of the case are that the petitioner is the father of one Shatrughan who was aged about 25 years, was cleaner on a truck. The petitioner's son died on 8.4.1987 in an accident at Bilashnagar Railway Crossing, District Shahjahanpur while working on the truck. A F.I.R. was lodged at Police Station Katra District Shahjahanpur under sections 279, 304A and 420 I.P.C and the crime no. 48 of 1983 was registered.

Petitioner filed a Motor Accident Claims petition on 10.9.1987 for claiming a compensation of Rs. 60,000/- and engaged a counsel to attend his case. A date was fixed on 29.1.1990 but the counsel could not attend the court as he was out of station. The case was therefore fixed for 13.2.1990. On that date, counsel fell ill and the petitioner had also fallen ill and did not attend the court and the case was dismissed in default.

Petitioner later on came to know that his case had been dismissed in default.

Petitioner therefore moved a restoration application under Order IX Rule 9 C.P.C. for recall of the order dated 13.2.1990. The court directed that delay condonation application should also be filed. The petitioner did so on 3.5.1991.

Both these applications were rejected by the court below on 20.9.1991 for no reason had been disclosed in explaining the delay in moving the application. Petitioner thereafter moved a review application, which was rejected on 7.7.1995 and thereafter he moved another application for review which was also rejected on 22.9.1997.

Learned counsel for the petitioner has argued that such hyper technical reasons should not have been adopted by the court below and the court below should have condoned the delay and heard the matter on merits.

Learned counsel for the petitioner has moved this petition under Article 226 and 227 of the Constitution.

Learned counsel for the petitioner has placed before the Court a decision of Hon'ble Supreme Court as reported in 2000 (39) ALR SC 110 (G.P. Srivastava vs. R.K. Raizada and ors.) wherein the Hon'ble Supreme Court has held that the words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party.

Here in this case, the litigant is the poor father of young son who had lost his life in a motor accident. The litigant is an uneducated man; he reposed his trust in the lawyer to conduct his case. The lawyer did not attend the case for the first occasion and on the next occasion, he was ill when the case was dismissed for non-prosecution. Clearly the litigant was not at fault.

Petitioner was advised by the lawyer to file a restoration application. The court permitted him to file it along with delay condonation application. In this background, the court ought to have allowed the delay condonation application and should have heard the matter on merits. The delay, if any, caused by the litigant was not either deliberate or intentional or to drag the case. On the other hand, the litigant himself was seeking relief of compensation.

In view of the above, I am of the opinion that the order dated 20.9.1991 is liable to be set aside by this Court.

I accordingly set aside the order dated 20.9.1991 and subsequent orders dated 12.7.1995 and 22.9.1997. The matter is remitted back to the court, which will decide the matter on merits. The matter will be re-opened immediately upon the production of a certified copy of this order and the court below shall give to the litigant a proper opportunity of hearing which shall be done regularly and on early date.

The writ petition is allowed. There will be no order as to costs.

Dated  24.1.2006

Rk.6004.98-10


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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