Allowed

Hari Om and Others v. Ramji Rastogi and Others

Allahabad HC3 Sept 2024A227/4139/2024

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a revisional order that set aside a trial court's refusal to decide an application to strike out defence. The Court held the revisional order violated a prior direction to decide the suit on merits.

What did the court decide?

Implugned order dated 14.08.2024 set aside. Trial Court directed to proceed with trial of suit expeditiously.

Hari Om and Others vs Ramji Rastogi and Others — Specific Performance | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:60483

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Court No. - 19

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Case :- MATTERS UNDER ARTICLE 227 No. - 4139 of 2024

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Petitioner :- Hari Om And Others Respondent :- Ramji Rastogi And Others Counsel for Petitioner :- Faiz Ahmad Khan Counsel for Respondent :- Mohd. Mustafizul Haq,Mohd. Kashif Rafi

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Faiz Ahmad Khan, the learned counsel for the petitioners and Sri Mohd. Mustafizul Haq, the learned counsel for the opposite parties.

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With the consent of the learned counsel for the parties, the petition is being disposed of finally at the admission stage.

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By means of the instant petition filed under Article 227 of the Constitution of India, the petitioner has challenged the validity of a judgement and order dated 14.08.2024 passed by the learned Additional District Judge/ FTC, Court No. 1, Gonda in Civil Revision No. 95/2023 allowing the revision filed against the order dated 10.10.2023 passed by the learned Civil Judge (Sr.Div.), Gonda in a SCC Suit No. 04/1998.

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Briefly stated, facts of the case are that the aforesaid suit for recovery of possession and recovery of arrears of rent was filed on 30.03.1998. The plaintiff had filed an application (paper no. C-37) under Order 15 Rule 5 CPC for striking out defence consequent to non-payment of arrears of rent etc. on 30.03.2001. The application was rejected by the trial court by means of an order dated 08.02.2005. The plaintiff filed Civil Revision No. 76 of 2005 against the order dated 08.02.2005, which was allowed by means of a judgment and order dated

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11.01.2008 passed by the learned Special Judge (SC/ST) Act, Gonda. The petitioners had challenged the aforesaid order dated 11.01.2008 by filing Writ Petition No. 3424 (M/S) of 2008 before this Court, which was disposed of by means of an order dated 13.02.2017, wherein it is recorded that after arguing the matter at some length, the learned counsel for the parties agreed that the trial court may be directed to decide the suit itself on merits within the time frame fixed by this Court and the question of payment of rent will also be decided while deciding the suit itself. Accordingly, the writ petition was disposed of by directing the trial court to decide the suit on merit within a period of six months.

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It appears that the suit could not be decided during the aforesaid period of six months fixed by this Court for various reasons, including the reason that subsequently the defendantpetitioner filed an application under Order 7 Rule 11 CPC and he also amended his pleadings. It appears that because of delay in disposal of the suit, the plaintiff again pressed the application under Order 15 Rule 5 CPC, which was rejected by means of an order dated 10.10.2023 wherein the trial court had recorded that in the order dated 13.02.2017 passed by this Court in Writ Petition No. 3424 (M/S) of 2008, this Court had directed the trial court to decide the suit on merits within a period of six months and the question of arrears of rent shall also be decided at the same time. Therefore, instead of passing any order on the application under Order 15 Rule 5 CPC, the trial court fixed the matter on 15.10.2023 for evidence/hearing. The opposite parties challenged the aforesaid order dated 10.10.2023 by filing Civil Revision No. 95 of 2023, which has been allowed by the judgment and order dated 14.08.2024 passed by the learned Additional District Judge, FTC, Court No. 1, Gonda. The revisional court held that the parties have adduced evidence on

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the point of payment of arrears of rent and in these circumstances, the trial court had committed an error in declining to decide the application under Order 15 Rule 5 CPC.

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When earlier the application under Order 15 Rule 5 CPC had been rejected by means of an order dated 08.02.2005 and the order dated 11.01.2008 passed by the Revisional Court allowing the revision was challenged before this Court by filing Writ Petition No. 3424 (M/S) of 2008 and the said writ petition was disposed of recording consent given by the learned counsel for the parties that they will get the suit decided on merits expeditiously, it was not open for the revisional court to remand the matter for disposal of the application under Order 15 Rule 5 CPC without proceeding for disposal of the suit itself in compliance of the order dated 13.02.2017 passed by this Court in the earlier writ petition.

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In these circumstances, the impugned order dated 14.08.2024 passed by the learned Additional Sessions Judge, FTC, Court No. 1, Gonda appears to have been passed in violation of the direction issued by this Court by its order dated 13.02.2017 passed in Writ Petition No. 3424 (M/S) of 2008 and it is unsustainable in law.

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In view of the aforesaid discussion, the petition is allowed . The impugned judgement and order dated 14.08.2024 passed by the learned Additional District Judge/ FTC, Court No. 1, Gonda in Civil Revision No. 95/2023 is set aside.

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As the suit is pending since the year 1998 and it could not be decided in spite of lapse of about 26 years and in spite of a direction having been issued by this Court on 13.02.2017 for deciding the suit within a period of six months, it is directed that the trial court shall proceed with trial of the suit expeditiously by fixing short dates and by not granting any

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unnecessary adjournments to any of the parties and shall ensure expeditious disposal of the suit in accordance with law, keeping in view the discussions made by this Court in the order dated 13.02.2017 passed by this Court in Writ Petition No. 3424 (M/S) of 2008.

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Order Date :- 3.9.2024 Pradeep/-

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Digitally signed by :- PRADEEP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Hari Om and Others v. Ramji Rastogi and Others

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Hari Om and Others v. Ramji Rastogi and Others

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