Uttarakhand High Court
Jitendra Kumar Gupta vs Smt Subhra And Others on 14 February, 2017
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Application for Transposition (CLMA 13417/2015)
With
Delay Condonation Application (CLMA 13416/2015)
In
Appeal from Order No. 617/2015
Jitendra Kumar Gupta .... Appellant
Versus
Smt. Subhra and Others .... Respondents
Mr. Arvind Kumar Sharma, Advocate, for the appellant/applicant.
Mr. Neeraj Garg, Advocate, for the respondents.
With
Application for Transposition (CLMA 13419/2015)
With
Delay Condonation Application (CLMA 13418/2015)
In
Appeal from Order No. 616/2015
Jitendra Kumar Gupta .... Appellant
Versus
Smt. Subhra and Others .... Respondents
Mr. Arvind Kumar Sharma, Advocate, for the appellant/applicant.
Mr. Neeraj Garg, Advocate, for the respondents.
February 14, 2017
Hon'ble Servesh Kumar Gupta, J.
Both these appeals challenge the same judgment and order dated 26.2.2010, hence are being inter- connected and decided together by this single order.
Having heard learned Counsel for both the parties, it would be quite pertinent to look into the backdrop of the controversy between the parties.
An Original Suit No. 07/1989 was instituted by Mr. Jagdish Prasad Gupta against Mr. Ram Shankar Asthana and four others seeking perpetual prohibitory injunction not to interfere in the possession and use of pathway, which has been shown in the detailed pleading of the 2 plaint. A counter-claim was presented by the defendants seeking mandatory injunction to close the outdoor gate, which was used as a means to utilise such pathway, which was developed illegally by the plaintiff.
Learned Civil Judge (Senior Division) vide judgment and order dated 28.7.2001 dismissed the suit of the plaintiff and decreed the counter-claim. Two separate appeals bearing no. 110/2001 and 122/2001 were preferred by the plaintiff challenging such judgment. These appeals were dismissed in non-prosecution on 22.1.2007. Two restoration applications bearing Miscellaneous Case No. 8/2007 and 9/2007 were presented for readmission of the appeals. Ground projected for restoration was that the plaintiff/appellant misunderstood the date as 22.2.2007, instead of 22.1.2007 and dismissal of the suit could be known to him while his Counsel inspected the file on 6.2.2007.
Learned Additional District Judge vide his impugned order dated 26.2.2010 expressed the view that the reasoning which was being projected by the plaintiff/appellant was quite false and not acceptable. So, he dismissed both the restoration applications.
Against the dismissal of the restoration applications, a Writ Petition (M/S) No. 819/2010 was presented on 1.6.2010. A coordinate Bench of this Court vide order dated 20.5.2015 permitted the writ petitioner/plaintiff to withdraw such writ petition with liberty to file AO. So, these AOs were presented on 26.11.2015 after a delay of 184 days.
Learned Counsel of the appellant has submitted that the appellant is quite an old person of the age of 74 years. So, the age factor was the all-round cause for the delay in approaching the Counsel and aheading the 3 litigation. This plea has been resisted by the learned Counsel for the respondent on the ground that even against the order dated 26.2.2010, the appeals could have been filed latest by 25.5.2010, i.e. within 90 days. He further submitted that even if the argument of learned Counsel for the appellant is accepted for a moment that the Counsel was misconceived in filing the writ petition and did not have any knowledge to present the AO before the Court, then also by applying that standard, the writ petition ought to have been filed at least within that timeframe, which was permissible to file the AO. So, this way the writ petition was filed out of the purview of the time limit, which is allowed under the Limitation Act, to file the AO before the Court, wherefor no explanation has been offered.
Otherwise on merit also, learned Additional District Judge in his impugned order dated 26.2.2010 has quite elaborately explained that the reason given for misreading of the date by the plaintiff's Counsel is quite a pretext.
So, on the merit as well as on the ground of delay, I do not find any force in these appeals. Consequently, both the appeals are dismissed.
All pending applications stand disposed of accordingly.
Let the LCR be sent back.
(Servesh Kumar Gupta, J.) Prabodh