Dismissed

Dharam Pal Singh v. Smt. Kanti Devi and Another

Allahabad HC7 Dec 2018A227/9064/2018

Case brief

AI extract

What is this about?

In this Article 227 petition, the court dismissed the challenge against the dismissal of a miscellaneous appeal arising from a temporary injunction matter. The court held that the appellate court correctly rejected a recall application since the appellant was aware of the hearing dates due to notification regarding a bar association strike.

What did the court decide?

Petition dismissed; no specific relief granted in this matter.

Dharam Pal Singh Vs Smt. Kanti Devi and… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 36

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Case :- MATTERS UNDER ARTICLE 227 No. - 9064 of 2018

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Petitioner :- Dharam Pal Singh Respondent :- Smt. Kanti Devi And Another Counsel for Petitioner :- Ashok Kumar Nigam

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Hon'ble Mrs. Sunita Agarwal,J.

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The order of dismissal of misc. appeal arising out of a temporary injunction matter as also the order passed in recall application filed by the appellant are being challenged in the present petition on the ground that it was not open for the first appellate court to decide the misc.civil appeal in absence of the appellant and his counsel.

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Submission is that on the date fixed for hearing of the misc. appeal, there was a resolution of the District Bar Association to abstain from judicial work. The fact that the appellant was not present at the time of hearing of the appeal is noted in the order impugned. Reliance is placed on the provisions as contained in Order 41 Rule 19 to submit that in absence of the appellant, only course was open for the first appellate court to dismiss the appeal for default. It could not have been decided on merits. Further it is contended that on the restoration application moved by the appellant, it was obligatory upon the first appellate court to recall the order of dismissal of appeal and allow readmission thereof. Reliance has been placed upon the judgment of the Apex Court in Ghanshyam Dass Gupta Vs. Makhan Lal, 2012 (8) SCC 745 .

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From a perusal of the recall application filed under Order 41 Rule 19 read with Section 151 C.P.C., it is evident that the petitioner/appellant was well aware of the date fixed i.e. 24.12.2014 for disposal of the appeal, as it is stated therein that the counsel for the petitioner/appellant had informed him that the Advocates were observing strike on the date fixed in the matter and, hence, he did not go to the court on that date. Further on account of continuous strike being observed by the Advocates,on the next date fixed was 4.2.2015, no information could be available to him about the proceedings. The matter was heard finally on 4.2.2015 and was decided on 7.2.2015.

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In the said scenario, it is evident that the petitioner/appellant was aware of both the date fixed for disposal of appeal i.e. 24.12.2014 and 4.2.2015. The appellate court, therefore, cannot be said to have erred in rejection of the recall application vide order dated 10.8.2018

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So far as the first submissions made by learned counsel for the petitioner is concerned. Aid of the provisions as contained in Order 41 Rule 17 and 19 cannot be taken of, to assail the order which has been passed in misc. appeal filed under Order 43 Rule 1 (r) of the Code of Civil Procedure. Reference to the judgment of the Apex Court, therefore, is of no relevance. No other submission has been made on the merits of the order passed by the first appellate court. The order of rejection of temporary injunction application passed by the trial court dated 1.3.2014 is not under challenge in the present petition.

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The present petition is, accordingly, dismissed.

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Order Date :- 7.12.2018 Pratima

Dharam Pal Singh v. Smt. Kanti Devi and Another

Case brief

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Dharam Pal Singh v. Smt. Kanti Devi and Another

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