Tilkesh Jain vs Jal Singh

Shishir Kumar, J.

By means of present writ petition petitioner has approached this Court for issuing a writ of certiorari quashing order dated 17.11.2008 by which application filed by petitioner for recall of order allowing the respondent''s application exparte to permit him to cross examine certain witnesses has been allowed.

Petitioner being a landlord filed release application under Section 21(1)(a) of the Act No.1972 for release of said accommodation. There is no dispute to this effect that respondent is a tenant. Only to delay the proceeding, an amendment application was filed in 2006 and subsequently, in the same year another application for amendment was filed to amend the written statement in spite of fact that written statement was filed on 27.4.2005 and both amendment applications were allowed. Now, only to delay the proceeding an application for cross examination of witnesses mentioned in the application was filed, in spite of fact that affidavits were filed in 2006. To the said application objection was filed by petitioner and 5.11.2008 was fixed. Petitioner being a lady was seriously ill and could not appear before the Court on the date fixed and petitioner''s advocate who also not appeared and the said application was allowed being Application No.60 Gha. Immediately, an application was filed by petitioner for recall of order on the ground that aforesaid order has been passed without hearing petitioner and said application is not permitted to be allowed and it has been filed only to delay the proceeding. The aforesaid application was rejected only on the ground that as objection filed has been taken into consideration and cases cited by petitioner are regarding exparte decree, therefore, application itself is not maintainable.

Petitioner aggrieved by aforesaid order has filed present writ petition.

After hearing learned counsel for petitioner and after perusal of record, it appears that order allowing the application for permitting the respondents to cross examine certain witnesses was allowed without hearing petitioner and subsequent application for recall of said order has been rejected on the ground that as application has not been filed under Section 151 of Civil Procedure Code and application under Order 9, Rule 13 is not maintainable as well as objection filed by petitioner has been considered, therefore, there is no necessity to recall the said order as there is no power to review.

After considering the submissions made on behalf of parties, in my opinion, admittedly, the order is apparent to be exparte without giving an opportunity to petitioner. If such application was filed on behalf of petitioner, the court below should have considered the same and would have allowed the said application as admittedly, the order was exparte.

In view of aforesaid fact, present writ petition is being disposed of finally setting aside the orders impugned dated 5.11.2008 and 17.11.2008 passed in P.A. Case No.20 of 2004 Smt. Tilkesh Jain Vs. Jal Singh and matter is remanded back to relevant authority to decide the said application for the purposes of cross examination after affording full opportunity to petitioner. As the matter is very old, therefore, Prescribed Authority is directed to decide the said application of release filed under Section 21(1)(a) of the Act within a period of three months from the date of production of certified copy of this order.

With these observations the writ petition is disposed of.

No order as to costs.