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Ved Prakash & Others v. C.J.M. & Others - WRIT - C No. 8177 of 1986 [2007] RD-AH 5069 (21 March 2007)


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(Court No. 28)

Civil Misc. Writ Petition No. 8177 of 1986

Ved Prakash and another Versus C.J.M Muzaffar Nagar and others

Hon'ble S.U.Khan J

In spite of sufficient service no one has appeared on behalf of legal representatives of respondent No.3 (substitution application has been allowed today). No one has also appeared on behalf of Nagar Palika, Muzaffar Nagar respondent No.2 in the writ petition.

Heard learned counsel for the petitioner.

Petitioners filed an appeal under Municipalities Act before C.J.M Muzaffar Nagar against mutation orders passed by Nagar Palika. The appeal was registered as Nagar Palika Appeal (or mutation appeal) No. 19/13 of 1983. The appeal was dismissed in default on 11.2.1985. Restoration application was filed on the next date i.e. 12.2.1985. The said application was also dismissed in default on 22.4.1985. Second restoration application was filed on 20.5.1985 which was also dismissed in default on 15.11.1985. Thereafter third restoration application was filed on 28.11.1985. In the said application prayer for setting aside all the three earlier orders of dismissal in default dated 11.2.1985, 22.4.1985 and 15.11.1985 was made. The said application was registered as case No. 188/12 of 1985 Ved Prakash Vs. Janeshwar. The said application was dismissed by C.J.M Muzaffar Nagar on 5.2.1986 only on the ground that in one application prayer for recalling three orders could not be made. This writ petition is directed against the said order.

In my opinion the impugned order is utterly erroneous in law. There is nothing wrong in making prayer for setting aside three orders in one application. The learned C.J.M Muzaffar Nagar could insist only for payment of three sets of court fees. No useful purpose will be served by sending back restoration matter to court below. In my opinion sufficient ground for restoration had been made out. Accordingly impugned order dated 5.2.1986 is set-side. Restoration application of the petitioner dated 28.11.1985 is allowed, orders dated 11.2.1985, 22.4.1985 and 15.11.1985 are set-aside on payment of Rs.1000/-  costs in addition to two sets of court fees payable on application. The aforesaid cost and court fees shall be deposited before C.J.M Muzaffar Nagar within three months from today. Along with cost application to bring on record legal representatives of Janeshwar respondent No.3 shall also be filed before the court below and notice must also be issued to the legal representatives. The amount of deposited cost of Rs.1000/- shall be paid in equal share to the learned counsel for Nagar Palika and the learned counsel who may be engaged by the legal representatives of Janeshwar otherwise whole cost be paid to learned counsel for Nagar Palika . If the cost is not deposited then this order shall stand automatically vacated and writ petition shall stand dismissed.

Writ petition is accordingly allowed .




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