Allowed

Balkesh Dubey and Another v. the Joint Director Education, Azamgarh Region and 3 Others

Allahabad HC17 May 2018SPLAD/285/2018

Case brief

AI extract

What is this about?

Special appeal filed against dismissal of a writ petition was heard. The court condoned delay under Section 5 of the Limitation Act granting sufficient cause. The appellate court set aside the lower court order dismissing the writ plea as infructuous and restored the matter.

What did the court decide?

Delay condoned. Special Appeal allowed. Impugned judgment and order dated 4 January 2018 set aside. Writ petition restored to original number.

Balkesh Dubey and Another Vs the Joint… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 39

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Case :- SPECIAL APPEAL DEFECTIVE No. - 285 of 2018

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Appellant :- Balkesh Dubey And Another Respondent :- The Joint Director Education, Azamgarh Region And 3 Others Counsel for Appellant :- Narendra Kumar Counsel for Respondent :- C.S.C.,Dinesh Chandra Tripathi

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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Civil Misc. Delay Condonation Application No. 1 of 2018

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Heard learned counsel for the parties.

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In view of the averments made in the affidavit filed in support of the application under Section 5 of the Limitation Act, we are satisfied that the applicant prevented by sufficient cause from preferring the Special Appeal within the period of limitation.

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The application is, accordingly, allowed and the delay in filing the Special Appeal is condoned.

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Order Date :- 17.5.2018 Sartaj

(Dilip Gupta,J.)

(Neeraj Tiwari,J.)

Court No. - 39

Case :- SPECIAL APPEAL DEFECTIVE No. - 285 of 2018

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Hon'ble Dilip Gupta,J. Hon'ble Neeraj Tiwari,J.

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This Special Appeal has been filed against the judgment and order dated 4 January 2018 of a learned Judge of this Court by which Writ-A No.21930 of 2000 has been dismissed. The judgment is reproduced below:-

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"1. Called in revise. None appeared on behalf of petitioners.

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By means of the present writ petition, petitioners have sought the following reliefs:

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" (a) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 1.2.1999 and 3.2.1999 contain as Annexure No. 4 and 5 to this writ petition.

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(b) issue a writ, order or direction in the nature of mandamus directing the respondents no. 2 and 3 to pay arrears of salary since November 1998 to till date and to pay the regular salary of the petitioners month to month as and when it falls due in future.

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(c) issue a writ, order or direction in the nature of mandamus directing to respondent no. 2 and 3 to comply the order dated 1.12.99 passed by respondent no. 1 during the pendency of the writ petition."

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However, I have gone through the pleadings, grounds as also reliefs sought and find that petitioner is not able to make out a case so as to justify interference of this Court by granting reliefs, as prayed for.

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Moreover, it appears that either the cause of action no more survives or that petitioners have lost interest in this matter or it has otherwise become infructuous and, probably for this reason, none is interested to have decided this matter on merits and that is why, counsel for petitioners is absent.

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Dismissed. Interim order, if any, stands vacated. "

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Learned counsel for the petitioner-appellant has submitted that the counsel for the petitioner-appellant could not appear before the learned Judge. It is also submitted that cause of action still survives but as the matter has been decided on merits, a recall application cannot be filed.

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In the absence of counsel for the petitioner-appellant, the learned Judge has, after reading the pleadings, found that the petitioner-appellant has not been able to make out a case for the Court to interfere. The learned Judge has also observed that the matter may have been rendered infructuous as counsel for the petitioner-appellant has not appeared. The learned counsel for the petitioner-appellant has stated that he could not appear before the Court.

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In the facts and circumstances of the case and when the matter has not been rendered infructuous, we consider it appropriate to set aside the judgment and order dated 4 January 2018 and restore the writ petition to its original number.

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The Special Appeal is, accordingly, allowed.

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Order Date :- 17.5.2018 Sartaj

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(Dilip Gupta,J.)

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(Neeraj Tiwari,J.)

Balkesh Dubey and Another v. the Joint Director Education, Azamgarh Region and 3 Others

Case brief

What is this about?

What did the court decide?

Balkesh Dubey and Another v. the Joint Director Education, Azamgarh Region and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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