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High CourtsSingle Bench(2016) 12 AHC CK 0008

Parasuram vs Rama Nand

Allahabad High Court · Decided on 15 December 2016 · Citation: (2017) 1 CivilLJ 695

HON’BLE JUDGES
Pankaj Mithal, J.
RESULT
Allowed
CASE NUMBER
Civil Procedure Code, 1908 (CPC) - Order 41 Rule 19 Constitution of India, 1950 - Article 227

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Judgment

10 paragraphs · 374 words

Pankaj Mithal, J.—Heard learned counsel for the petitioners and Sri Mukesh Kumar, learned counsel appearing for the respondents.

2.

The petitioners have preferred this petition against the order dated 27.08.201, by which, their application to recall the order dated 03.10.2009 has been rejected on the ground that they have wrongly mentioned the particulars of the case, in which, the order dated 03.10.2009 was passed.

3.

It appears that the suit of the petitioner was partly decreed and not satisfied by the part decree, the petitioners have preferred a civil appeal, which was dismissed for want of prosecution on 31.01.2004.

4.

The petitioners applied under Order 41, Rule 19 CPC for setting aside the order dated 31.01.2004, which was registered as Miscellaneous Case No.674 of 2004. This application/miscellaneous case was dismissed in default on 03.10.2009.

5.

Thereafter, the petitioners filed an application for recall of the order dated 03.10.2009. This application was registered as Miscellaneous Case no.16/74/2009. This application has been rejected by the impugned order dated 27.08.2016 only for the reason that the wrong particulars of the case have been mentioned.

6.

The submission is that the Court below has not considered the reason given by the petitioners for absence leading to the passing of the order dated 03.10.2009.

7.

I have perused the order dated 27.08.2016 and find that the Court below has not applied its mind to the cause shown by the petitioners for absence from the court resulting in the passing of the order dated 03.10.2009.

8.

The application of the petitioner was for recall of the order dated 03.10.2009 and the entire record of the case was before the court concerned and therefore, simply for the reason that some wrong particulars were mentioned, the application was not liable to be rejected.

9.

In view of the aforesaid facts and circumstances, the order dated 27.10.2016 is not sustainable in law and therefore, the impugned order dated 27.10.2016 is set aside with the direction to the court concerned to re-consider the application of the petitioner for recall of the order dated 03.10.2009, which has been registered as Miscellaneous Case No.16/74 of 2009 in accordance with law most expeditiously, if possible within a period of two months.

10.

The petition is accordingly allowed.