Allowed

Abdul Aziz v. Kailash Babu Gupta

Allahabad HC22 Nov 2019FAFOD/624/2018

Case brief

AI extract

What is this about?

A first appeal was filed challenging the dismissal of an application for permission to sue as an indigent person. The appellant argued the order was passed without an enquiry. Counsel for the respondent-defendant-opposite party consented to setting aside the order and expediting the trial. The appellate court set aside the impugned order and directed the lower court to decide the suit within one y

What did the court decide?

The order dated 11.4.2018 was set aside and the court below was directed to decide Original Suit No. 270 of 2016 expeditiously, preferably within one year.

Abdul Aziz Vs Kailash Babu Gupta — Civil Procedure and Limitation | Allahabad HC (2019)

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Court No. - 4

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Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 624 of 2018

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Appellant :- Abdul Aziz Respondent :- Kailash Babu Gupta Counsel for Appellant :- Srijan Mehrotra Counsel for Respondent :- Manish Goyal,Nipun Singh

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rohit Ranjan Agarwal,J.

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Heard Sri Srijan Mehrotra, learned counsel for appellant and Sri Nipun Singh, learned counsel for defendant-opposite party.

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This appeal under Order 43 Rule 1(na) CPC arise out of judgment and order dated 11.4.2018, passed by Civil Judge (Senior Division), Gautam Budh Nagar on an application No.67C2 in Original Suit No.270 of 2016.

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Facts in brief are that plaintiff-appellant instituted Original Suit No.270 of 2016 in the court of Civil Judge (Senior Division), Gautam Budh Nagar seeking relief for declaration of sale-deed dated 18.4.2018 to be null and void and also restraining defendant-opposite party from interfering with peaceful possession of plaintiff over plot no.20A, Block E, Sector-8, Phase-I, Noida, District Gautam Budh Nagar.

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An application under Order 39 Rules 1 and 2 read with Section 151 was also filed for grant of interim relief. Thereafter opposite party contested aforesaid suit. Issues were framed and one of the issue, i.e., issue no.4 was to the effect as to whether court fee paid by plaintiff-appellant was sufficient or not. On 25.1.2018 Civil Judge (Senior Division) decided issue no.4 and observed that case fell within Section 7(iv-A) of the Court Fees Act and, as such, court fee would be chargeable according to value of subject matter, and court fee paid was insufficient and plaintiff-appellant was directed to pay court fee. Plaintiffappellant thereafter moved an application No.67-C2 under Order XXXIII Rule 1 of the C.P.C. on 7.3.2018 for permission to sue as an indigent person, on the ground, that he did not have the means to pay requisite court fee. Defendant-opposite party filed objection on 14.3.2018, which was numbered as Paper No.69-C2. Court below on 11.4.2018 dismissed application 67C2, filed by plaintiff-appellant, which is under challenge in present appeal.

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The aforesaid appeal was contested by defendant-opposite party by filing counter affidavit, to which rejoinder affidavit has been filed by plaintiff-appellant, which is on record.

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Today when the matter was taken up for hearing, learned counsel for both parties consented that appeal be disposed of finally at this stage without calling for lower court record.

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Sri Nipun Singh, counsel appearing for defendant-opposite party very fairly submitted that order dated 11.4.2018 be set aside and Original Suit No.270 of 2016 may be decided within a fixed period of time as the impugned order was passed the court below without holding any enquiry.

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In view of the statement so made by counsel for defendantopposite party, we set aside order dated 11.4.2018, passed by Civil Judge (Senior Division), in Original Suit No.270 of 2016, passed on application No.67C2 and further direct court below to decide suit No.270 of 2016, Abdul Aziz vs. Kailash Babu Gupta, expeditiously, preferably within a period of one year from the date of production of a certified copy of this order.

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It is, however, made clear that no unnecessary adjournment shall be granted to either of the parties.

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Appeal stands allowed.

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Order Date :- 22.11.2019 AKJ

Abdul Aziz v. Kailash Babu Gupta

Case brief

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Abdul Aziz v. Kailash Babu Gupta

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