VIRENDRA PAL SINGH Vs. VEER VIKRAM SINGH

JUDGEMENT

(1.) Present writ petition has been filed by the Petitioners for the following reliefs:

(2.) Brief facts of the case are that on 29.05.2007 Respondent/Plaintiff instituted O.S. No. 78 of 2007 before Civil Judge (Sr. Div.), Roorkee. Learned Civil Judge (Sr. Div.), Roorkee decreed the suit on 14.02.2008 and Petitioners/Defendants were directed to remove their possession from the property in question within a period of two months. Against the decree dated 14.02.2008 the Petitioners/Defendants preferred Civil Appeal No. 06 of 2008 before the Additional District Judge, Roorkee. The Petitioners/Defendants also filed an application for staying the operation of judgment and order dated 14.02.2008. The appeal was fixed for 05.12.2008 but on that day the Petitioner No. 1/Defendant No. 1 fell ill and could not appear before the court. On 05.12.2008 the learned Additional District, Judge, Roorkee dismissed the appeal in default. After recovering from illness the Petitioner No. 1/defandnat No. 1 moved an application on 17.01.2009 for recalling the order dated 05.12.2008. Alongwith his recall application the Petitioner No. 1/Defendant No. 1 also filed medical certificate. In his application the Petitioner No. 1 submitted that his non-appearance on 05.12.2008 was not deliberate and was due to reason of sudden illness. The Respondent/Plaintiff filed his objection against the recall application stating therein that Petitioners/Defendants deliberately remained absent on the date fixed and this was done by them only for the purpose of delaying the matter. On 04.02.2010 the learned Additional District, Judge rejected the application.

(3.) Learned Counsel for the Petitioner submitted that there was only 13 days delay in filing the recall application which was sufficiently explained by him but the learned Additional District Judge without any valid reason rejected the application. He submitted that the medical certificate clearly shows that Petitioner No. 1 was actually suffering from typhoid from 05.12.2008 to 14.01.2009. He further submitted that Petitioner No. 1 was the pairokar of other remaining Petitioners and due to this reason other Petitioners also could not appear on the date fixed.