Court No. - 30 C.M. Recall Application No.142617 of 2009 In Case :- WRIT - B No. - 43612 of 2007 Petitioner :- Amar Singh Respondent :- Dy. Director Of Consolidation, Badaun & Others Petitioner Counsel :- M.P. Singh Gaur Respondent Counsel :- C.S.C.,Y S Saxena Hon'ble Amreshwar Pratap Sahi,J.
This is a recall application filed for recall of the order dated 29.5.2009
whereby the stay order passed by this Court has been vacated on the
ground that an illness slip has been sent by the learned counsel for the
petitioner and secondly the previous Writ Petition No.35722 of 2006 had
already been dismissed as not pressed at the instance of the petitioner
himself on 22.3.2007.
Learned counsel for the applicant contends that the previous writ
petition was sought to be withdrawn on the ground that the restoration
application is pending before the Deputy Director of Consolidation and,
therefore, the said writ petition will be presumed to have been dismissed
as withdrawn on the ground that it was open to the petitioner to pursue
his remedy before the Deputy Director of Consolidation.
I have perused the order passed on the withdrawal application in Writ
Petition No.35722 of 2006, which is quoted below:-
“Sri M.P. Singh Gaur, Advocate appearing for the petitioner states that
the petitioner does not wish to press this writ petition. The petitioner has
also filed an application to this effect which is supported by an Affidavit
of the petitioner himself.
The application is allowed and the writ petition is dismissed as not
pressed.”
A perusal of the said order does not indicate any opportunity having
been granted to the petitioner to contest the matter before the Deputy
Director of Consolidation. The statement made in the application is not
as the relief granted by this Court. Apart from this, once the said
application has been dismissed as withdrawn then in view of the
principles ingrained in the provisions of Order 23 Rules 1 to 3 of the
C.P.C., the petitioner will be deemed to have abandoned his claim. The
order under challenge in the said writ petition was dated 5.6.2006.
In the present case also the same order has been challenged coupled
with a prayer to quash the subsequent order of the Deputy Director of
Consolidation which has rejected the restoration application on the
ground that the petitioner has already withdrawn his writ petition.
In this view of the matter, this recall application is patently misconceived
and the entire stand taken by the petitioner is nothing-else but an abuse
of the process of the Court.
The application is rejected.
Order Date :- 23.7.2010
Irshad