Dismissed

Smt. Ramshri Sharma v. Kanti Prasad Dwivedi (Since Deceased) and 10 Others

Allahabad HC11 Jul 2023A227/3940/2023

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition under Article 227 challenging a trial court order allowing recall of proceedings under Order 9 Rule 7 CPC and the rejection of the revision. The Court found no legal error or jurisdictional error warranting intervention and directed the trial court to proceed expeditiously.

What did the court decide?

Writ petition dismissed; trial court directed to proceed expeditiously.

Smt. Ramshri Sharma Vs Kanti Prasad Dwivedi… — Civil Procedure and Limitation | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:136480

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Court No. - 1

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Case :- MATTERS UNDER ARTICLE 227 No. - 3940 of 2023

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Petitioner :- Smt. Ramshri Sharma Respondent :- Kanti Prasad Dwivedi (Since Deceased) And 10 Others Counsel for Petitioner :- Arvind Srivastava,Sharique Ahmed

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Hon'ble Jayant Banerji,J.

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Heard Sri Arvind Srivastava, learned counsel for the plaintiffpetitioner.

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By this petition, the order dated 21.9.2016, passed by the Additional Civil Judge (Senior Division)/Additional Chief Metropolitan Magistrate, Kanpur Nagar in Original Suit No. 1639 of 2005 (Smt. Ramshri Sharma Vs. Kanti Prasad) has been challenged, whereby the application (paper No. 103-Ga-2) filed by the defendant-respondents under Order 9 Rule 7 of the Code of Civil Procedure (hereinafter referred to as the CPC) was allowed. Also under challenge is an order dated 23.2.2023, passed by the Additional District Judge, Court No. 26, Kanpur Nagar in Civil Revision No. 150 of 2016 (Smt. Ramshri Sharma Vs. Kanti Prasad), whereby the revision filed by the petitioner against the aforesaid order of 21.9.2016 was rejected.

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The contention of the learned counsel for the petitioner is that the trial court by an order dated 14.12.2012 had directed the suit aforesaid that was filed for permanent injunction to proceed exparte. It is contended that without showing good cause, the application paper No. 103-Ga-2 was filed under Order 9 Rule 7 CPC, which, despite objection filed by the plaintiff-petitioner, came to be allowed by the impugned order. It is contended that a finding was required to be recorded by the trial court regarding good cause which has not been done in the instant case.

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A perusal of the order impugned dated 21.9.2016 reflects that the trial court has observed that in the application, defendantsrespondents have stated that they were incarcerated in jail in a separate criminal case because of which they could not appear in the court and when they were enlarged on bail, they enquired from their advocate regarding status of the case. It is stated that when they could not get answer from their advocate, they engaged another advocate from whom they came to know regarding the order dated 14.12.2012. It has been further observed in the order

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that the plaintiff-petitioner has stated in her objection that the defendants-respondents were enlarged on bail in the year 2009. The Court went on to observe that it would be appropriate in the interest of justice that the case be disposed of on merits and delay of four years in filing the application, can be compensated by imposing cost. Accordingly, the application 103-Ga-2 was allowed with cost of Rs. 2500/-.

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The revisional court by the impugned order has considered the stage of the trial and has observed that after the order of exparte proceeding in the suit on 14.12.2012, the case was being listed for evidence and, thereafter the case was listed for exparte hearing and it is thereafter that application 103-Ga-2 was filed for recall. It was observed by the revisional court that the cost imposed would cover the monetary loss incurred by the plaintiff-petitioner and observed that there is no legal error or error of jurisdiction that could warrant interference, accordingly the revision was rejected.

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Having perused the record of the petition and considered the contentions of the learned counsel for the petitioner, I do not see it a fit case for interference. As is evident from the order of the revisional court, the case had not reached the stage of the judgement. Further, a cost of Rs. 2500/ has been imposed.

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For the reasons aforesaid, this petition is dismissed . It is however, provided that since suit is of 2005, the trial court shall endeavour to proceed with the matter expeditiously without granting any unnecessary adjournment to either of the parties.

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Order Date :- 11.7.2023 sfa/

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(Jayant Banerji, J)

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Digitally signed by :- SYED FAHEEM AHMAD High Court of Judicature at Allahabad

Smt. Ramshri Sharma v. Kanti Prasad Dwivedi (Since Deceased) and 10 Others

Case brief

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Smt. Ramshri Sharma v. Kanti Prasad Dwivedi (Since Deceased) and 10 Others

Case brief

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