Court No. - 19 Case :- MISC. SINGLE No. - 2443 of 2009 Petitioner :- Smt. Meena Singh Respondent :- Additional District Judge Sitapur Petitioner Counsel :- Vimal Kishore Verma Respondent Counsel :- C.S.C.,Jai Pal Singh,Q.M.Haque Hon'ble S.C. Chaurasia,J.
Heard learned counsel for petitioner, learned Standing
Counsel, Sri Q. M. Haq, learned counsel for opposite party
no.2 and perused the record.
This writ petition under Article 226 of the Constitution of
India has been filed with the prayer that a writ, order or
direction in the nature of Certiorari may be issued quashing
the impugned judgment and order dated 23.03.2009 passed
by opposite party no.1 in Civil Revision No. 21 of 2007,
contained as Annexure No.1 to the writ petition.
Learned counsel for petitioner has submitted that the
application under Order 9, Rule 7 C.P.C. was moved on
behalf of defendants for setting aside the exparte order dated
27.04.1991 and after hearing both the parties, said application
was allowed vide order dated 30.11.2006 and the exparte
order against the defendant no.2 was set aside, but, it was
directed that the proceedings against the defendant no.4 shall
continue exparte. Feeling aggrieved by the said order dated
30.11.2006 passed by learned Civil Judge, Biswa, Sitapur,
plaintiff Jai Pal Singh filed the Civil Revision No. 21 of 2007
in the Court of District Judge, which was ultimately disposed
of by Additional District Judge, Court No. 9, Sitapur vide
order dated 23.03.2009 and the revision was allowed and the
impugned order dated 30.11.2006 was set aside. His
contention is that the revisional Court has committed
illegality in exercise of its jurisdiction by setting aside the
order dated 30.11.2006 and hence, the impugned order
deserves to be quashed.
Learned counsel for opposite party no.2 has submitted that
the order passed by the revisional Court is perfectly valid and
calls for no interference.
From the perusal of impugned order dated 30.11.2006, it
transpires that the learned trial Court has set aside the order
dated 27.04.1991 for proceeding exparte against the
defendant no.2 on the ground that the order against her was
passed due to clerical mistake. Learned revisional Court has
set aside the impugned order dated 30.11.2006 on the ground
that the said order has been written by the Presiding Officer
in his own hand-writing and, hence, the question of clerical
error in the said order does not arise, but, the revisional Court
has not directed the trial Court to dispose of the application
no. 61-C afresh ignoring its finding that the order was passed
due to clerical error. Under the circumstances, it seems
expedient in the interest of justice that the defendant’s
application under Order 9, Rule 7 C.P.C. May be disposed of
by learned trial Court afresh in accordance with law.
There was no need for the petitioner to challenge the order
dated 30.11.2006 passed by learned Civil Judge, Biswa,
Sitapur as it was passed in his favour, but, since the order
against the defendant no.2 to proceed exparte was set aside on
the ground of clerical error in the judicial order written by the
Presiding Officer in his own hand-writing, the order dated
30.11.2006 also deserves to be quashed.
A writ of Certiorari is issued quashing the impugned
judgment and order dated 23.03.2009 passed by opposite
party no.1 and the order dated 30.11.2006 passed by learned
Civil Judge, Biswa, Sitapur, contained as Annexure Nos. 7 &
5 to the writ petition. The defendant’s application under Order
9, Rule 7 C.P.C., paper no. 61-C is remanded to the learned
trial Court for disposal afresh in accordance with law, after
providing reasonable opportunity of hearing to both the
parties, preferably within a period of two months from the
date a certified copy of the order of this Court is filed in the
said Court.
With these observations/directions, the writ petition stands
disposed of finally.
Order Date :- 30.7.2010
psd