High Court
Case Details
Court No. - 6 A.F.R. Case :- MATTERS UNDER ARTICLE 227 No. - 3265 of 2022 Petitioner :- Smt. Rajani Respondent :- Vipul Mittal And 4 Others Counsel for Petitioner :- Anil Kumar Aditya,Radhey Shyam Dwivedi Counsel for Respondent :- Shreya Gupta,Ravi Anand Agarwal Hon'ble J.J. Munir,J. This petition is directed against the order dated 13.04.2022 passed by the Additional District Judge, Court No. 5/Special Judge (U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986) Muzaffarnagar, dismissing Civil Revision No. 18 of 2022 and affirming an order dated 07.03.2022 passed by the Civil Judge (Senior Division) Fast Track Court, Muzaffarnagar in Original Suit No. 372 of 2013, rejecting the petitioner’s application 85C seeking to recall orders dated 26.10.2021 and 14.12.2021. 2. By the order dated 26.10.2021, an application for adjournment by the defendant has been rejected and his opportunity to cross-examine P.W.1 closed. The suit was directed to come up for arguments. By the order dated 14.12.2021, in the
Legal Reasoning
absence of the defendant, the suit was directed to come up for arguments ex-parte on 03.01.2022. A perusal of the record shows that Original Suit No. 372 of 2013 was filed by Vipul Mittal against Yogendra Kumar Garg before the Court of the Civil Judge (Senior Division), Muzaffarnagar for partition of his half share in House No. 212/1, situate at Mohalla Civil Lines, West, Muzaffarnagar, detailed in Schedule A to the plaint. The plaintiff sought a decree in terms that after the determination of his share, the suit property be Page 2 of 8 partitioned by metes and bounds and separate possession delivered to him. A decree for permanent injunction was also sought to the effect that the defendants, prior to the partition being effected, may not mortgage the suit property or alter the nature and character of the house in dispute. The original defendant to the suit, Yogendra Kumar Garg, appears to have passed away pending suit and was substituted by his heirs and L.Rs., numbering five, and arrayed as defendant nos. 1/1 to 1/5 to the suit. The suit is one of the year 2013. The suit has proceeded to trial and it appears that the plaintiff had filed his evidence on affidavit and 16.10.2021 was the date scheduled for cross-examination of P.W.1. On the said date, the Counsel for the defendant made an application for adjournment, which was opposed by the plaintiff. The application for adjournment was rejected and opportunity to cross-examine P.W.1 was closed. The suit was directed to come up for arguments on 09.11.2021. On 09.11.2021, 17.11.2021 and 01.12.2021, the suit was adjourned eventlessly. It was adjourned on 09.11.2021 because the Presiding Officer was on leave, but the parties were also absent. On 17.11.2021, it was adjourned because the learned Members of the Bar had abstained from judicial work. Again, on 01.12.2021, the case was adjourned because the Presiding Officer was on leave. On 01.12.2021, it was adjourned to 14.12.2021. On 14.12.2021, when the suit came up for arguments, the Counsel for the plaintiff was present, but no one appeared on behalf of the defendant. It was in those circumstances that the Trial Court directed that the suit may come up for arguments ex-parte on 03.01.2022. In the said order, it was recorded that the Bar Association has proposed no work from 17.12.2021, due to elections of the Bar. Matters under Art. 227 No. 3265 of 2022 Page 3 of 8 3. By the application dated 04.01.2022, the defendant has sought recall of the order dated 14.12.2021 that directs the suit to come up for address of arguments ex-parte. This application bears Paper No. 85C. By the other application dated 07.03.2022, the defendant has sought recall of the order dated 26.10.2021 that has closed the defendant’s opportunity to cross-examine P.W.1 and once again asked for recall of the order dated 14.12.2021, setting down the suit for address of arguments ex-parte. It is these applications that the Trial Judge has rejected vide his order dated 07.03.2022. 4.
Legal Reasoning
Heard Mr. Anil Kumar Aditya, learned Counsel for the petitioner in support of the motion to admit this petition to hearing and Ms. Shreya Gupta, learned Counsel appearing for the plaintiff- respondents at length. The records have been carefully perused. 5. The impugned order passed by the Trial Judge shows that he has rejected the Application 85C seeking recall of the order dated 14.12.2021 alone, that is to say, the application dated 04.01.2022 on the ground that there is no order dated 14.12.2021. That remark or reason to reject by the Trial Court is not borne out from the record. There is definitely an order dated 14.12.2021 passed by the Trial Court, directing the suit to come up for address of arguments ex-parte. So far as the other application is concerned, the Trial Court has dismissed it on the ground that the order dated 14.12.2021 is non-existent and the order dated 26.10.2021 ought not to be recalled, because the defendant is merely trying to delay the trial. It has also been remarked that the Application 85C (the application dated 07.03.2022 that seeks recall of both orders dated 26.10.2021 and 14.12.2021) is not supported by an affidavit. It is for the reason that Application 89C has been rejected. The Revisional Court has upheld the orders impugned on the ground Matters under Art. 227 No. 3265 of 2022 Page 4 of 8 that both the applications 85C and 89C have been made much beyond limitation, without an application or prayer for condonation of delay; but, this is one facet of the reasoning that the Revisional Court has adopted. The Revisional Court has looked wholesomely into the record to arrive at a conclusion that the defendant is attempting to delay trial of the suit, which has been expedited under orders of this Court dated 14.09.2018 passed in some supervisory proceedings. It appears that there is some order of this Court, directing the suit to be decided within two years and that schedule was violated because of the dilatory tactics adopted by the defendant. It is bearing all these facts in mind that the Revisional Court has declined to interfere with the orders made by the learned Trial Judge. 6. This Court has carefully looked into the order-sheet. It must be remarked that indeed, there have been determined efforts to delay trial of the suit. On 08.01.2021, the plaintiff’s evidence on affidavit was accepted and the suit was scheduled for cross- examination of P.W.on 28.01.2021. From 28.01.2021 to 26.10.2021, 18 dates were fixed prior to 26.10.2021, but for one reason or the other, the defendant did not cross examine P.W.1. The Trial Judge in between 28.01.2021 and 26.10.2021 has taken note of the orders of this Court in the order recorded on 02.08.2021, saying that the High Court has issued directions for concluding the trial within two years, and further, that the suit has been assigned to him by the District Judge. It is not that the order dated 26.10.2021, closing the defendant’s opportunity has been passed surreptitiously or suddenly. The defendant has been given enough opportunity by the orders passed by the Trial Court on earlier dates, and also, by all those ominous resolutions of the Bar, directing its members to abstain from judicial work. It must be Matters under Art. 227 No. 3265 of 2022 Page 5 of 8 remarked that Resolutions of the Bar, asking its Members to abstain from judicial work, are absolutely unlawful, in view of the directions of the Supreme Court in Ex-Capt. Harish Uppal v. Union of India and another1, Common Cause, a registered society and others v. Union of India and others2, Krishnakant Tamrakar v. State of Madhya Pradesh, (2018) 17 SCC 27 3 and District Bar Association, Dehradun through its Secretary v. Ishwar Shandilya and others4. Such resolutions being per se illegal, no litigant can derive any advantage out of these. The orders passed on 01.09.2021, 13.09.2021, 14.09.2021, 08.10.2021 and 26.10.2021 must be taken particular note of, as these immediately preceded the order dated 26.10.2021 passed by the learned Trial Judge. These orders are extracted below : 01.09.2021 Called out. Pf. did not turn up. Counsel on behalf of the df. Present and filed adjournment 82D stating that O.S. 982/10 is a connected case and is pending in the Court of Civil Judge S.D. df. are trying to get the connected case transferred to one Court. Hence adjournment is moved. Application allowed in interest of justice. Put up on 13-09-2021. 13-09-2021 Called out. None present. Proposal of Bar to abstain from judicial work. Hon’ble H.C. has pass direction to dispose off the case within 2 years. Even on repeated requests to the counsels, no sides are appearing. In the interest of justice, last opportunity is granted to parties. Put up on 24-09-2021. 1 2 3 4