Uttarakhand High Court
Smt Chandrakala vs Smt Sudha Sharma And Others on 20 June, 2017
Author: U.C.Dhyani
Bench: U.C.Dhyani
WPMS No. 1442 of 2017 U.C.Dhyani, J.
Mr. Vikas Bahuguna, Advocate, present for the petitioner.
By means of present writ petition, the petitioner seeks the following relief, among others:
"Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 30.05.2017 passed by learned Prescribed Authority/learned Civil Judge (S.D.), Dehradun in Misc. P.A. Case No. 21 of 2013, Smt. Chandrakal vs. Sudha Sharma and others, and further to allow the application for recalling the ex parte judgment and order dated 03.09.2012."
A Prescribed Authority case was instituted by one Shanti Devi against present petitioner under Section 21(1) (a) of U.P. Act No. 13 of 1972 for release of tenanted premises. Opposite party-petitioner was served with notice, but, he did not appear before the learned Prescribed Authority. Proceedings were initiated ex parte against her. On 03.05.2012, an ex parte order was passed. Aggrieved against the same, the tenant-petitioner moved an application under Section 5 Limitation Act along with Application under Order 9 Rule 13 C.P.C. on 05.08.2013. The said application under Section 5 Limitation Act was dismissed and the application under Order 9 Rule 13 C.P.C. was not heard on merit. Aggrieved with the same, present writ petition has been filed.
Learned counsel for the petitioner submitted that there was delay of 5 months in filing the application under Order 9 Rule 13 C.P.C. It is the submission of learned counsel for the petitioner that petitioner never had any knowledge of ex parte judgment and decree dated 03.09.2012, which constrained the decree holder(s) to file execution of the ex parte judgment and order, where after petitioner gained knowledge of the ex parte judgment and order and immediately approached the learned Prescribed Authority on 05.08.2013 for recalling the ex parte judgment and order dated 03.09.2012 inter alia on the ground that the petitioner never had knowledge of the ex parte judgment and order dated 03.09.2012. It was further stated in the application that the day when the petitioner was shown to be served by the postman by refusal i.e. on 25.06.2012, petitioner was out of country. It was specifically mentioned in the affidavit that the summon which was shown to be served by process server is not in compliance with the General Rules Civil as well as Code of Civil Procedure.
Although, learned Prescribed Authority - Civil Judge, Junior Division, Dehradun has passed an elaborate order holding that no sufficient ground has been shown to condone the delay, yet, fact of the matter is that as far as possible a party to the lis should be granted opportunity to contest the case for or against him/her provided he or she does not sleep over his or her rights.
After considering the documents on record including the Order-sheet of the Prescribed Authority, this Court is of the opinion that one more opportunity should be granted to the tenant-petitioner to contest application under Section 21(1)(a) of U.P. Act No. 13 of 1972 in the interest of justice.
Application under Section 5 of the Limitation Act as also application under Order 9 Rule 13 C.P.C. filed by the petitioner is, therefore, allowed on payment of Rs. 10,000/- as costs to be paid to the respondent within two weeks from today. If the cost is paid by the petitioner and accepted by the respondent within the time, the learned Prescribed Authority shall proceed with the matter, as per law. Both the impugned Orders are set aside in the interest of justice.
Since present writ petition is being decided without notice to the respondents and without causing further delay, therefore liberty is granted to them to move for recall of this Order, if they feel aggrieved with the same.
Let a copy of this Order be supplied to the learned counsel for the petitioner without 48 hours on payment of usual charges.
(U.C.Dhyani, J.) 20.06.2017 Kaushal