SHRICHAND Vs. DISTRICT JUDGE
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
District Judge and others
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(1.) By means of this writ petition, the petitioner has challenged the order dated 07.05.2003 passed by the Additional District Judge/F.T.C.-V Dehradun in Suit No.160 of 1999, order dated 02.04.2004 passed by Additional District Judge/F.T.C. V Dehradun in Misc. Case No.05 of 2003 as well as the order dated 14.05.2004 passed by the District Judge, Dehradun in R.C.A. No.56 of 2004.
(2.) The facts, as stated in the writ petition, are that the petitioner is landlord of the shop forming part of property no.57 Block-II Aragarh, Dehradun. Arun Kumar Sharma was tenant under the said property, who died on 05.03.1996 leaving behind his wife and his minor sons. Petitioner filed a release application for the release of said property. Case was registered as P.A. Case No.74 of 1998. Same was ordered to be proceeded ex-parte but subsequently order for ex-parte hearing was recalled on 10.12.1998. While recalling the order of proceeding ex-parte, the lower court/Prescribed Authority passed a conditional order to the effect that in case, the defendant/petitioner failed to file his written statement, the order for proceeding ex-parte would be cancelled. The case was ordered to proceed ex-parte on 06.01.1999. After the evidence of petitioner, case was decreed ex-parte on 12.01.1999 releasing the property in favour of petitioner (landlord). Thereafter respondents filed an appeal R.C.A. No.56 of 2004. This appeal was filed by Sanjay Gaur, Advocate of the respondents on 10.05.1999 under his own signature without any vakalatnama. It was stated in the memo of appeal that vakalatnama of Sanjay Gour, Advocate was already in the lower court record. In the meanwhile, possession of the shop was given to the plaintiff/petitioner on 08.07.1999. On 07.05.2003 order was passed condoning the delay in filing appeal with cost of '200/-. Against the said order the plaintiff/petitioner filed a Review Application No.05 of 2003 for review under Rule 22 of Rules enacted under U.P. Act No.XIII of 1972 which was dismissed vide order dated 02.04.2004. District Judge, Dehradun heard the appeal no.56 of 2004 and admitted the same on 14.05.2004. Feeling aggrieved petitioner filed this petition.
(3.) Learned counsel for the petitioner submitted that inspite of his consistent objection, respondents did not care of filing vakalatnama and putting signature on vakalatnama after obtaining permission of the Court. This was not done. Therefore, defect was not cured. He submitted that order dated 14.05.2004 passed by learned District Judge, Dehradun and order dated 02.04.2004 passed by the Additional District Judge/F.T.C. V th , Dehradun are not proper orders as same have resulted in the miscarriage of justice. Learned counsel for the petitioner further submitted that effect of not signing the memo of appeal, application under Section 5 of Limitation Act and filing of appeal through lawyer without vakalatnama on record has the effect of there being no appeal in the eye of law and therefore, the application under Section 5 of Limitation Act could not have been allowed and similarly the appeal ought not to have been admitted. Learned counsel for the petitioner placed reliance on the judgment of Chhita (Defendant) vs. Jaffo (Minor) Through Abdul Aziz (Plaintiff),1981 ALRJ 983.;
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