Allowed

Jai Gopal v. Shiv Kumar Tejpal

Punjab & Haryana HC15 Oct 2009CR/1137/2008

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana allowed the revision, setting aside the trial court's dismissal of a recall application. The Court held the trial court failed to consider the petitioner's prayer for condonation of delay, which was sufficiently pleaded with an affidavit despite the title. It remitted the matter for a fresh decision.

What did the court decide?

The impugned order dated 6.12.2007 is set aside. The matter is remitted to the trial court for a fresh decision within three months.

Jai Gopal Vs Shiv Kumar Tejpal — Civil Procedure and Limitation | Punjab & Haryana HC (2009)

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Civil Revision No. 1137 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Civil Revision No. 1137 of 2008 Date of decision:15^th October, 2009

Jai Gopal

......Petitioner

Versus

Shiv Kumar Tejpal

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......Respondent

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Before: HON'BLE MR. JUSTICE RAJIVE BHALLA

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Present: Mr. N.C.Kinra, Advocate for the appellant.

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Mr. P.S.Sarna, Advocate for the respondent.

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Rajive Bhalla, J.(Oral)

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Prayer in this petition is to set aside the order dated 6.12.2007, passed by the Additional Civil Judge (Senior Division), Nawanshahr, dismissing an application for recalling an order dismissing his application under Order 39 Rule 2-A for default on 24.04.2004.

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I have heard counsel for the parties, perused the impugned order and am of the considered opinion that the trial court has failed to consider the appellant's prayer for condonation of delay. Though the petitioner was required to file a separate application under Section 5 but as the application contains the pleadings with respect to condonation of delay, duly supported by an affidavit, the court was required to consider and decide the prayer for condonation of delay. The title of the application is irrelevant.

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The trial court however, dismissed the application without considering the prayer for condonation of delay. The trial court failed to peruse or consider the averment in the application, that the order dismissing his application for default came to the petitioner's

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Civil Revision No. 1137 of 2008

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knowledge on 20.01.2007. The application was dismissed on the petitioner's conduct preceding the order of dismissal in default.

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In this view of the matter, the revision petition is allowed, the order dated 6.12.2007, passed by the Additional Civil Judge (Senior Division), Nawanshahr, is set aside and the matter is remitted to the Additional Civil Judge (Senior Division), Nawanshahr, for deciding the application afresh and in accordance with law.

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Parties are directed to appear before the Additional Civil Judge (Senior Division), Nawanshahr, on 4.12.2009, who shall decide the application within three months.

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[RAJIVE BHALLA] JUDGE

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15^th October, 2009 Shivani Kaushik

Jai Gopal v. Shiv Kumar Tejpal

Case brief

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Jai Gopal v. Shiv Kumar Tejpal

Case brief

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