Dismissed

Jadawati Devi v. Hoob Lal Tiwari and 17 Others

Allahabad HC22 Apr 2019A227/2102/2019

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court rejected the claim that the impugned orders condoning delay and dismissing a review application were illegal. The Court held that Rule 89-A compliance is for the merits of the appeal, and no error appeared on the face of the record for review.

What did the court decide?

The writ petition filed under Article 227 of the Constitution of India was dismissed.

Jadawati Devi Vs Hoob Lal Tiwari and 17… — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 40

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Case :- MATTERS UNDER ARTICLE 227 No. - 2102 of 2019

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Petitioner :- Jadawati Devi Respondent :- Hoob Lal Tiwari And 17 Others Counsel for Petitioner :- Arvind Kumar Rai

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Hon'ble Harsh Kumar,J.

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Heard Sri Arvind Kumar Rai, learned counsel for petitioner and perused the record.

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The present writ petition has been filed for quashing the judgment and orders dated 23.10.2018 & 29.11.2018 passed by Xth Additional District Judge, Varanasi in Misc. Case No.336 of 2017 and Misc. Case No.4 of 2018, Annexures-6 & 7 respectively to the writ petition.

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Learned counsel for petitioner submitted that mother of petitioner filed Civil Suit No.54 of 2002 for cancellation of sale deed dated 22.6.1982 which was contested by defendantrespondent no.1 Hoob Lal Tiwari by filing written statement but subsequently he did not turn up and suit was decreed ex-parte on 21.10.2016; that against the judgment and decree dated 21.10.2016 the defendant-respondent no.1 preferred a time barred appeal before the District Judge with an application for condonation of delay on the ground that he had no knowledge of transfer of case to another Court and so for non-compliance of provisions of Rule 89-A General Rule Civil delay is liable to be condoned and after admitting appeal within time ex-parte decree is liable to be set-aside and civil suit is required to be decided upon evidence adduced by parties; that above application under Section 5 moved by defendant-respondent no.1 being Misc. Case No.336 of 2017 was wrongly allowed by impugned order dated 23.10.2018 passed by Xth Additional District Judge, Annexure-6; that against above order dated 23.10.2018 petitioner filed a Review Application being Misc. Case No.4 of 2018 which was rejected by Xth Additional District Judge vide impugned order dated 29.11.2018, Annexure-7; that it is wrong to say that provisions of Rule 89-A of General Rule Civil were not complied with and the order condoning delay as well as rejecting review application are erroneous and are liable to be set-aside.

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Upon hearing learned counsel for petitioner and perusal of record, I find that in the impugned order dated 23.10.2018 at Annexure-6 learned Additional District Judge has specifically mentioned that "without expressing any opinion with regard to compliance of Rule 89-A General Rule Civil the delay is liable

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to be condoned" and so the matter of compliance of provisions of Rule 89-A General Rule Civil is open between the parties which is to be considered at the time of disposal of appeal on merits and it does not prejudice the rights of plaintiff-petitioner. The scope of Section 5 is very wide and as per settled principles of law courts are required to be more liberal in the matters of condonation of delay and too technical approach is not required in matters of condonation of delay. As far as rejection of Review Application is concerned, the scope of review is very limited and since no error on the face of record of order dated 23.10.2018 could be shown in review application, there is no illegality, irregularity or incorrectness in the impugned order dated 29.11.2018 dismissing review application, Annexure-7.

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In view of discussions made above, I have come to conclusion that there is no illegality, irregularity or incorrectness in the impugned orders and learned counsel for petitioner has failed to show any manifest error of fact and law or any perversity in the impugned orders. Learned counsel for petitioner has failed to show that if the impugned orders are allowed to exist it may result in miscarriage of justice or cause irreparable injury to petitioner. Since the matter of compliance of Rule 89-A General Rule Civil is to be considered in the appeal itself, there is no sufficient ground for interfering with or setting it aside the impugned orders by exercising powers under Article 227 of the Constitution of India.

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The writ petition is dismissed, accordingly.

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Order Date :- 22.4.2019 Kpy

Jadawati Devi v. Hoob Lal Tiwari and 17 Others

Case brief

What is this about?

What did the court decide?

Jadawati Devi v. Hoob Lal Tiwari and 17 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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