HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition Misc. Single No. 194 of 2025

15 May, 2025 Ashwani Kumar … Petitioner Versus Amitabh Kumar & others … Respondents ----------------------------------------------------------------------

Presence:-

Mr. Yogesh Pant, learned counsel for the petitioner.

Mr. Piyush Garg, learned counsel for the respondent/caveator.

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Hon’ble Manoj Kumar Tiwari, J

JUDGMENT

1. By means of this petition filed under Article 227 of the Constitution of India, petitioner has sought the following reliefs:-

(i) To set aside the order dated 30.11.2024 (contained as Annexure No. 1) passed by the Ld. District Judge, Rudrapur, District Udham Singh Nagar, in Revision Case No. 47 of 2022 namely, “Ashwini Kumar Vs. Amitabh Kumar and Others” along with the order passed by the Ld. IInd Add. Senior Civil Judge, Rudrapur, District Udham Singh Nagar, dated 12.09.2022 (contained as Annexure No. 2) passed in Misc. Civil Application No. 15 whereby, the Misc. Civil Application No. 15 of 2020 filed for restoration of the Civil Suit No. 43 of 2011 is dismissed.

(ii) To allow the restoration application (contained as Annexure No. 7) filed by the petitioner and to restore the original civil suit in its original number 43 of 2011 namely “Ashwini Kumar Vs Amitabh Kumar & Others” by setting aside the order dated 08.101.2014 (contained as Annexure No. 3) & 12.11.2014 (contained as Annexure No. 4) passed by the Ld. IInd Add. Civil Judge (SD), Rudrapur, District Udham Singh Nagar.

2. Facts of the case, on which there is no dispute, are as follows:-

(i) Sister of the petitioner (Mrs. Ajanta Sharma) filed an application on 02.02.2011 for mutating her name in revenue record before Tehsildar, Kichha (Udham Singh Nagar) on the strength of a Will, alleged to have been executed in her favour by her father Late Vishnu Dutt, on 11.05.2010. The said application was numbered as Mutation Case No.

30/352 of 2010-11.

(ii) After coming to know about the Will dated 11.05.2010, petitioner filed a suit for cancellation of said Will before 2^nd Additional Civil Judge (S.D.), Rudrapur, District Udham Singh Nagar, which was numbered as Civil Suit No. 43 of 2011. After few months, petitioner moved an application for withdrawal of Civil Suit No. 43 of 2011 in order to pursue the mutation case filed by his sister before Tehsildar and the said application was allowed and the suit filed by him was dismissed as withdrawn, vide order dated 12.11.2014.

(iii) Proceedings of Mutation Case No. 30/352 of 2010-11 were kept in abeyance due to filing of suit for cancellation of Will by the petitioner, however, after withdrawal of the suit, proceedings of mutation case were revived. The mutation case was decided against the petitioner and WPMS No. 3919 of 2019, filed by the petitioner challenging the orders passed by revenue authorities, was also dismissed by coordinate Bench of this Court, vide judgment dated

27.02.2020.

(iv) After dismissal of his writ petition, petitioner moved an application for recall of the order dated 12.11.2014, whereby the suit was dismissed as withdrawn, and also for restoration of Civil Suit No. 43 of 2011. Since there was delay of 2122 days in moving the recall/restoration application, therefore, petitioner claimed benefit of Section 14 of the Limitation Act, 1963. Learned trial court vide order dated 12.09.2022 held that benefit of Section 14 cannot be given to him and rejected his prayer for condonation of delay. Petitioner challenged the order passed by trial court by filing Civil Revision No. 47 of 2022, which was dismissed by learned District Judge, Udham Singh Nagar, vide judgment dated

30.11.2024.

3. Petitioner has challenged the order passed by trial court, as affirmed by revisional court, in this writ petition.

4. Heard learned counsel for the parties and perused the record.

5. Both the learned courts below have held that benefit of the time spent by petitioner, in pursuing the mutat