# Hira Prasad v. State of U.P. and another

- **Citation:** (2004) 2 ILRA 552
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-07-08
- **Case number:** Civil Misc. Writ Petition No. 33892 of 1999
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hira-prasad-v-state-of-u-p-and-another-40424
- **Pages:** 2

## Headnote

Constitution
of
India-
Article
226-
Service Law- Transfer order- writ court
granted interim order- special appeal-

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
552
Case law discussed:
(2002) 3 SCC 156

(Delivered by Hon'ble S.N. Srivastava, J.)

1. Heard learned counsel for
petitioners.

This writ petition is directed against
the judgment and order dated 18.3.2004
passed by Special Judge, J.P. Nagar in
Civil Misc. Appeal No. 52 of 2002.

2. From perusal of record it
transpires that by an ex parte decree dated
9.5.1997 plaintiff- petitioners' suit was
decreed by Civil Judge (J.D.), Hasanpur,
Moradabad. Applications for restoration
of suit and for condoning delay supported
by an affidavit were rejected by trial court
by order dated 22.5.2002. The judgment
and order passed by appellate court in
appeal is impugned in the present writ
petition.

3. By the impugned judgment,
appellate
court
allowed
restoration
application and condoned delay, ex parte
decree dated 9.5.1997 was set aside at the
cost of Rs.1,000/- and suit was restored to
its original number.

4. Learned counsel for petitioners
urged that trial court passed an order on
the question of delay only and did not
pass any order so far as restoration
application is concerned. He further urged
that appellate court erred in law while
allowing the restoration application also
and order impugned is vitiated in law on
this ground.

5. After hearing learned counsel for
petitioners and considering materials on
record, I am of the view that as reasons
disclosed for non-appearance on the date
fixed in the suit and delay in filing
restoration application are same, appellate
court
rightly
allowed
restoration
application after condoning delay.

6. Where ground for restoration of
the suit as well as condonation of delay is
the same, order restoring the suit and
condoning delay could be passed by one
and common order and in case restoration
application is allowed, delay shall be
deemed to be condoned.

My view is supported by a judgment
of Apex Court reported in (2002) 3SCC
156 Devinder Pal Sehgal and another Vs.
Pratap Steel Rolling Mills Pvt. Limited.

7. There is no error of law in the
impugned order. It was rightly passed in
accordance with law. Now parties get full
opportunity of hearing.

Writ petition lacks merits and is
dismissed.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 33892 of 1999

Hira Prasad

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Sankatha Rai
Sri A.K. Singh

Counsel for the Respondents:
S.C.
Essential
Commodities
Act-
Seeds
Control Order, 1983 - R. 3 (i)-
http://www.allahabadhighcourt.nic.in
2 All] Hira Prasad V. State of U.P. and another
553
Applicability-Notice
under-
validityPetitioner preparing plants of certain
fruits, trees and selling them-This cannot
be called selling, exporting or importing
seeds under R. 3 (1)-Impugned notice
quashed.

Held: Para 5

In our opinion, this cannot be called
selling, exporting or importing the seeds.
Hence the petitioner cannot be required
to take licence under the Seeds (Control)
Order. He has already obtained a licence
under the Fruit Nursery (Regulation) Act,
1976, as stated in paras 8 and 10 of the
writ
petition.
The
writ
petition
is,
therefore, allowed and the impugned
notice dated 26.7.1999 is quashed.

(Delivered by Hon'ble M. Katju, J.)

1. Heard counsel for the parties.

2. This petition has been filed for
quashing the impugned notice 26.7.1999,
annexure 1 to the writ petition by which
the petitioner has been directed to obtain a
licence under the Seeds (Control) Order,
1983 which was issued under the
Essential Commodities Act.

Rule 3 (1) of the Seeds (Control)
Order states that:

"No person shall carry on business of
selling, importing and exporting seeds on
any place except under and in accordance
with the terms and condition of licence
granted to him under this order."

3. Shri Ajay Kumar Singh, learned
counsel for the petitioner has stated that
the petitioner does not sell, import or
export seeds as stated in para 10 (1) of the
writ petition. Hence his business is not
covered by the Seeds (Control) Order
1983.

4. Learned Standing counsel has
invited our attention to annexure CA 1 to
the counter affidavit which is a copy of
the petitioner's application dated 4.8.1999
to
the
addressed
to
the
District
Agricultural Officer, Varanasi. In this
application, the petitioner has stated that
he prepares plants of certain fruit, trees
and sells them.

5. In our opinion, this cannot be
called selling, exporting or importing the
seeds. Hence the petitioner cannot be
required to take licence under the Seeds
(Control) Order. He has already obtained
a licence under the Fruit Nursery
(Regulation) Act, 1976, as stated in paras
8 and 10 of the writ petition. The writ
petition is, therefore, allowed and the
impugned notice dated 26.7.1999 is
quashed.
Petition Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.8.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE U. PANDEY, J.

Special Appeal No. 921 of 2004

Brijpal Sharma

...Appellant
Versus
The State of U.P. & others ...Respondents

Counsel for the Appellant:
Sri S.K. Srivastava
Sri A.K. Srivastava

Counsel for the Respondents:
Sri I.P. Singh
S.C.

Constitution
of
India-
Article
226-
Service Law- Transfer order- writ court
granted interim order- special appeal-