Dismissed

Gurdas Singh and Ors. v. F.C.R. Punjab and Anr.

Punjab & Haryana HC6 Aug 2009CWP/8685/2009

Case brief

AI extract

What is this about?

Petitioners filed a writ seeking transfer of a revision case from the Financial Commissioner due to apprehension that it was restored without a formal application after being dismissed in default. The Court examined the proceeding record, found the dismissal and restoration were regular, and dismissed the petition holding no transfer warranted.

What did the court decide?

The writ petition is dismissed; no direction is issued to transfer the case.

Gurdas Singh and Ors. Vs F.C.R… — Civil Procedure and Limitation | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CWP No. 8685 of 2009

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Date of decision : August 6, 2009

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Gurdas Singh and another

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….. Petitioners

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Versus

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Financial Commissioner and Others

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….. Respondents

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Present: Mr. Vikas Mehsempuri, Advocate for the petitioners.

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Mr. H.S. Gill, DAG, Punjab for respondents No.1 and 2.

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Mr. Ashish Yadav, Advocate for respondent No.3.

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S.S. SARON, J.

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The present writ petition has been filed under Articles 226/227 seeking appropriate direction to respondent No.2 to transfer the case bearing ROR No.1005 of 2005 titled Municipal Council, Raikot v. Harchand Singh and Others to some other Court of competent jurisdiction.

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It is alleged that respondent No.2 after hearing the arguments on 12.5.2009, had dismissed the said ROR filed by Municipal Council, Raikot (respondent No.3). However, later the order was recalled and the case fixed for arguments on 28.5.2009 without filing any application by counsel for Municipal Council, Raikot (respondent No.3). The petitioners, therefore, apprehend that they would not get justice.

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Mr. H.S. Gill, DAG Punjab has filed an affidavit on behalf of respondents No.1 and 2 in Court which is taken on record. It is submitted that revision petition No.1005 of 2005 against the order dated 19.5.2005 passed by the Commissioner, Patiala Division, Patiala was filed by Municipal Council, Raikot (respondent No.3). According to the petitioners, the revision petition

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CWP No. 8685 of 2009

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came up for hearing before respondent No.2 on 12.5.2009 and after hearing the arguments, the ROR was dismissed vide order dated 12.5.2009 and no one had appeared on behalf of respondent No.3. The copy of the order dated 12.5.2009 has been attached as Annexure R2. The same reads as under:-

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“The case was taken up at 11.30 a.m. when Sh. Vikas Mehsempuri, Advocate appeared on behalf of respondent. Since no one appeared on behalf of the petitioner, the case was ordered to be dismissed in default. Since Court time was changed from 3.00 p.m. to 11.00 a.m. some of the counsel/parties could not appear being unknown of the change of court time. Hence, notice was sent to Bar Association of Punjab and Haryana High Court that the cases which could not be taken up in the morning will be taken up at 3.30 p.m. (in evening) today itself. Sh. Ashish Yadav appeared in the Court and stated that he could not appear in the morning because change of Court time, was not noticed by him. Considering his request genuine, the case is fixed for arguments on 28.5.2009. Counsel for the respondent be informed.”

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A perusal of the above order shows that the case was fixed for arguments on 28.5.2009. The same was dismissed in default on 29.8.2007 for non-appearance of the petitioner (respondent No.3 herein) or his counsel. However, an application for restoration the case was filed and the case was restored on 23.9.2008 with costs of Rs.500/-. A copy of the order dated 23.9.2008 is placed on record as Annexure R-1. Thereafter, the case was fixed for hearing on 17.2.2009 when it was adjourned to 10.3.2009 on request of

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CWP No. 8685 of 2009

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learned counsel for the petitioner (respondent No.3 herein). On 10.3.2009, the case was again adjourned to 12.5.2009 on the request of counsel for respondents who are present petitioners. On 12.5.2009, the Court time was changed from 3.00 p.m. to 11.30 a.m. when the counsel for the petitioner (respondent No.3) failed to appear and accordingly the case was ordered to be dismissed in default. Since some of the counsel/parties could not appear at 11.30 a.m., a notice was sent to the Secretary, Bar Association of this High Court that cases which could not be taken up in the morning would be taken up at 3.30 p.m. on that day. Shri Ashish Yadav, counsel for the petitioner (respondent No.3 herein) appeared and submitted that he could not appear in the morning because the change of Court time was not in his notice. Considering his request to be genuine, the case was fixed for arguments on 28.5.2009. The order dated 12.5.2009 (Annexure R2) is reproduced above.

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In the circumstances, there is nothing which would warrant the transfer of the case as the proceedings are being conducted properly, according to law and procedure. The apprehension of the counsel that the case which was dismissed on 12.5.2009 (Annexure R1) has been restored without filing any application by the Municipal Counsel Raikot (respondent No. 3) is without any basis. The order dated 12.5.2009 (Annexure R2) referred to above mentions the correct position. The petitioners cannot have a grievance in case the petition, which is dismissed in default as the counsel was not aware of the changed Court timings and then is restored on his making a representation regarding the same before the Court.

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Accordingly, there is no merit in this petition and the same is

dismissed.

CWP No. 8685 of 2009

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August 6, 2009 amit

Gurdas Singh and Ors. v. F.C.R. Punjab and Anr.

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Gurdas Singh and Ors. v. F.C.R. Punjab and Anr.

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