# Pushpak Jyoti v. State of U.P. and others

- **Citation:** (2004) 1 ILRA 236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-01-28
- **Case number:** Misc. Writ Petition No. 52499 of 2002
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpak-jyoti-v-state-of-u-p-and-others-40330
- **Pages:** 4

## Headnote

Civil Procedure Code-O. IX R.13- Exparte
decease-setting aside of-Application for
Condonation
of
delay
restoration
application
duly
supported
with
affidavit-Medical
Certificate
showing
that officer looking after case suffered
heart attack-This fact not denied by
plaintiff-No reason to disbelieve medical
certificate-Held, Trial Court as well as
appellate Court committed gross error
law in rejecting restoration application.

Held: Para 9

The fact whether defendant's counsel
was informed was denied in the affidavit
supporting
the
delay
condonation
application. There was no reason to
disbelieve the medical certificates. The
fact that the officer looking after the
case had suffered a heart attack and
could not pursue the matter, was not
denied. In the circumstances, I find that
both the Trial Court as well as the
Appellate Court committed gross error in
law,
in
rejecting
the
restoration
application.
Case Law Discussed:
(2001) 6 SCC 176
(1998) 7 SCC 123

## Text

236 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
The modern trend points to judicial
restraint with respect to administrative
decisions.

6. The same view has been taken in
another division bench decision Civil
Misc. Writ Petition No. 52499 of 2002
Pushpak Jyoti vs. State of U.P. and others
decided on 11.12.2003.

7. For the reasons given above this
petition
is
allowed.
The
impugned
judgment dated 15.4.1998 is set aside.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2004

BEFORE
TE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No.33472 of 2002

U.P. State Sugar Corporation Ltd. Unit
Saharanpur,
through
its
General
Manager

...Petitioner
Versus
District Judge, Saharanpur and others

 ...Respondents

Counsel for the Petitioner:
Sri R.K. Srivastava
Sri Y.K. Srivastava

Counsel for the Respondents:
Sri S.K. Pandey

Civil Procedure Code-O. IX R.13- Exparte
decease-setting aside of-Application for
Condonation
of
delay
restoration
application
duly
supported
with
affidavit-Medical
Certificate
showing
that officer looking after case suffered
heart attack-This fact not denied by
plaintiff-No reason to disbelieve medical
certificate-Held, Trial Court as well as
appellate Court committed gross error
law in rejecting restoration application.

Held: Para 9

The fact whether defendant's counsel
was informed was denied in the affidavit
supporting
the
delay
condonation
application. There was no reason to
disbelieve the medical certificates. The
fact that the officer looking after the
case had suffered a heart attack and
could not pursue the matter, was not
denied. In the circumstances, I find that
both the Trial Court as well as the
Appellate Court committed gross error in
law,
in
rejecting
the
restoration
application.
Case Law Discussed:
(2001) 6 SCC 176
(1998) 7 SCC 123

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri R.K. Srivastava for
petitioner and Sri S.K. Pandey for
respondents.

2. This writ petition arises out of
orders passed by Additional Civil Judge
(Junior Division) Saharanpur in Misc.
Case No. 4A/2000 rejecting petitioner's
application to set aside ex parte decree
dated 10.1.2000 in Original Suit No.215
of 1989 between Mukkha Vs. General
Manager, U.P. State Sugar Corporation,
Saharanpur and others; and the order of
District
Judge,
Saharanpur
dated
29.4.2002 in Misc. Civil Appeal No.39 of
2002 dismissing the appeal against the
order of the Trial Court.

3. Brief facts, giving rise to this writ
petition, are that the plaintiff filed a
Original
Suit
No.215/1989
for
dispossession of defendants from suit land
in Chak No. 136 Gata No.252. It was
alleged that the defendant forcibly entered
and started digging on 10.11.1989 and
that on 16.3.1990 they constructed 6 feet
wall, and fitted angle iron and barbed wire
http://www.allahabadhighcourt.nic.in
1 All] U.P. State Sugar Corporation Ltd. Unit Saharanpur V. D.J., Saharanpur and others 237
over the wall. The plaintiffs claimed that
the defendant Sugar Mill is continuing in
wrongful possession, and also claimed
damages.

4. A written statement was filed by
the defendant. The Trial Court fixed the
matter on 12.1.1998 for disposal of
Commissioner's report. The defendant
remained absent on that date, and
thereafter, inspite of information sent to
counsel for the defendant, Sri Basant
Singh to appear on 12.2.1998. No one
appeared on that date. The Suit was
decreed ex-parte on 20.5.1998. The
defendants
filed
an
application
on
13.1.2000 for setting aside ex-parte
decree alongwith an application for
condonation of delay. The application was
filed after about twenty months with the
explanation that Sri S. T. Khan, who was
looking after the case for the defendant -
Corporation had suffered a heart attack.
He could not come to the Court and was
not aware of the subsequent proceedings.
A medical certificate was filed in support
of the explanation.

5. The Trial Court found that the
medical certificate was of the year 1999;
the counsel for the defendant was given
information after which several dates
were fixed but no one appeared on behalf
of defendant. The Trial Court did not
accept the explanation for delay as well as
the absence on the dates fixed in the
matter and rejected the application. The
Appellate Court has found that the
medical certificates relate to the month of
March 1999, and held that the findings
arrived at by the Trial Court were not
perverse to call for any interference, and
consequently rejected the Appeal.

6. Sri R.K. Srivastava, counsel for
petitioner states that the Corporation had
set up a valid defence in the written
statement. It is stated in paragraph 17 of
the written statement that the U.P. State
Cement Corporation is a body corporate,
and has not been impleaded as party
respondents. The entire land towards west
of Khasra No.252, of Gaon Sabha Bidwai
was acquired and that a boundary wall has
been constructed on the western dol, and
on the eastern dol of Gaon Sabha Bidwai
of Khasra No.252. The boundary wall
towards north and south were constructed.
The constructions towards western side
were left out for which foundation was
dug and now the entire boundary wall has
been constructed. In paragraph-18, it was
denied that any part of Khasra No.252
was included in the land covered by the
boundary wall. The extension has been
made on the land acquired for the Lord
Krishna Sugar Mill of the Corporation.

7. The written statement goes to
show that the defendant had a triable case.
In the application for setting aside exparty decree supported by application for
condonation of delay, it was stated that
the Court had fixed 21.1.1998 for
objections on the survey report. On
21.1.1998,
the
Court
directed
the
plaintiffs to inform the defendant's
counsel of the next date fixed on
12.2.1998. The counsel Sri Basant Singh
was not given any information and that he
could not inform the next date to the
defendants. On 12.2.1998 not only the
report was confirmed ex-parte, a date was
fixed for ex parte hearing on 20.5.1998. In
the meantime Sri S.T. Khan, who was
looking after the case for Corporation
suffered a heart attack and was under
treatment at Saharanpur and thereafter at
Lucknow. He could not obtain further
http://www.allahabadhighcourt.nic.in
238 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
information of the case. The defendant
came to know about the ex-parte decree
on 10.1.2000, when the plaintiff came to
the
establishment
of
the
defendant
alongwith Court Amin for removing the
constructions. The file was thereafter
inspected
and
an
application
with
condonation of delay was filed on
12.1.2000.

8. In M.K. Prasad Vs. P.
Arumugam (2001) 6 SCC 176, the
Supreme Court held that the expression
'sufficient cause' in Section 5 of the
Limitation Act must receive liberal
construction so as to advance substantial
justice, and that generally delays are to be
condoned in the interest of justice, unless
gross negligence, and deliberate inaction
or lack of bona fides is imputable to the
party seeking condonation of delay. The
law of Limitation has been enacted to
serve the interest of justice and not to
defeat it. The Supreme Court followed its
earlier decision in N. Balakrishnan V.
M. Krishnamurthy (1998) 7 SCC 123 in
observing
that
the
acceptability
of
explanation for the delay is the sole
criterion and that length of delay is not
relevant. In the absence of anything
showing mala fide or deliberate delay as a
dilatory tactics, the court should normally
condone the delay. However, in such a
case the court should also keep in mind
the litigation expenses incurred or to be
incurred by the opposite party and should
compensate him accordingly. It was also
observed in para-9 in N. Balakrishanan'
case that the superior court would be free
to consider the cause shown for the delay
afresh and it is open to such superior court
to come to its own finding even
untrammeled by the conclusion of the
lower court. In M.K. Prasad's case, the
defendant came to know about the decree
passed in 1997 only when he received the
notice of execution proceedings. The
application for setting aside ex-party
decree which was rejected on the ground
of long delay of 554 days. The revision
was dismissed by the High Court. The
Supreme Court found that the defendant
should have been more vigilant, but his
failure to adopt such extra vigilance
should not have been made a ground for
ousting him from the litigation with
respect to the property conceded to be
valuable. It was held that while deciding
application for setting aside ex parte
decree the court should have kept in mind
the judgment impugned, the extent of the
property involved and the stake of the
parties. The inconvenience caused to the
respondents for delay on account of the
appellant being absent from the court in
this case can be compensated by awarding
appropriate and exemplary costs.

9. In the present case, the
Corporation took a defence that the
disputed land was acquired, and is not
part of Khasra No.252. Northern and
southern wall enclosing the acquired land
was constructed and that the Corporation
constructed the western wall without
encroaching upon the plaintiffs land. In
this matter the survey commissioner's
report could have established whether
there was any encroachment on the spot.
The
defence
was
required
to
be
considered, and that valuable property
which was claimed to be acquired, was
involved in the matter. The defendant had
offered reasonably bonafide explanation
for the absence on the date fixed and the
delay in filing the application. The Trial
Court erred in law and in exercise of its
jurisdiction in rejecting the application
only on the ground that the counsel for the
defendant was informed, but was not
http://www.allahabadhighcourt.nic.in
1 All] M/s V.K. Packaging Industries V. Tax Recovery Officer and others 239
present on that date and that the medical
certificates were of the year 1999. The
fact whether defendant's counsel was
informed was denied in the affidavit
supporting
the
delay
condonation
application. There was no reason to
disbelieve the medical certificates. The
fact that the officer looking after the case
had suffered a heart attack and could not
pursue the matter, was not denied. In the
circumstances, I find that both the Trial
Court as well as the Appellate Court
committed gross error in law, in rejecting
the restoration application. The plaintiff,
however, must have incurred expenses in
execution proceedings, and that in the
facts and circumstances, I find that costs
of Rs.10,000/- will serve the interest of
justice.

10. The writ petition is allowed. The
impugned orders dated 1.3.2002 passed
by
Civil
Judge
(Junior
Division)
Saharanpur in Misc. Case No.4A/2000
and order dated 29.4.2002 passed by
District Judge, Saharanpur in the Misc.
Civil Appeal No.39/2002 are set aside.
The
petitioner's
application
for
condonation of delay and setting aside the
ex parte decree stand allowed, subject to
payment of exemplary cost of Rs.10,000/-
to be paid by the defendants corporation
to the plaintiffs by depositing in trial court
within six weeks from delivering of this
judgment. In case the cost are not
deposited in trial court with the time
fixed, the ex parte decree passed against
petitioner
shall
stand
revived.
The
plaintiff shall be entitled to withdraw the
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2004

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

Civil Misc. Writ Petition No. 178 of 2003

M/s V.K. Packaging Industries ...Petitioner
Versus
Tax Recovery Officer and others

 ...Respondents

Counsel for the Petitioner:
Sri Govind Saran

Counsel for the Respondents:
Sri Bharat Ji Agarwal

Income Tax Act-Ss. 226 (3), 143 (3)-
demand
Notice
S.
226
(3)-ValidityDoctrine of merger-Assessment order dt.
15.3.2000 on basis of which impugned
demand notice was issued merged into
order of CIT (Appeals)-Whose order in
turn merged into order of Income Tax
Appellate Tribunal-ITAT set aside order
of
CIT
(Appeals)
on
ground
that
assessing officer as well as CIT (Appeals)
had not given copies of accounts of third
parties-Hence issue of demand notice in
pursuance
of
assessment
order
dt.
15.3.2000
and
realization
of
sum
thereunder held, illegal-Petitioner, held,
entitled to restitution of amount of tax
realized under assessment order dt.
15.3.2000.

Held: Paras 27,28,29 & 31

In
these
circumstances
we
fail
to
understand how any demand could be
issued against the petitioner and how
any sum could have been realized from
the petitioner in pursuance of the
assessment order dated 15.3.2000 when
the
said
assessment
order
dated
15.3.2000 has in fact ceased to exist.
Merely
because
the
Tribunal
has
http://www.allahabadhighcourt.nic.in