RAJANI Vs. VIPUL MITTAL

JUDGEMENT

(1.) This petition is directed against the order dtd. 13/4/2022 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 dtd. 7/3/2022 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 dtd. 26/10/2021 and 14/12/2021.

(2.) By the order dtd. 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 dtd. 14/12/2021, in the absence of the defendant, the suit was directed to come up for arguments ex-parte on 3/1/2022. 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 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.,.00 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 9/11/2021. On 9/11/2021, 17/11/2021 and 1/12/2021, the suit was adjourned eventlessly. It was adjourned on 9/11/2021 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 1/12/2021, the case was adjourned because the Presiding Officer was on leave. On 1/12/2021, 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 3/1/2022. 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.

(3.) By the application dtd. 4/1/2022, the defendant has sought recall of the order dtd. 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 dtd. 7/3/2022, the defendant has sought recall of the order dtd. 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 dtd. 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 dtd. 7/3/2022.