HIGH COURT OF UTTARAKHAND, NAINITAL

Writ Petition No.874 of 2010 (M/S)

Smt. Ritu Pistritto

W/o J. C. Pistritto

……… Petitioner

Versus

Swatantra Kumar

S/o late Govind Ram Kapoor

……… Respondent

Dated:- 09^th July, 2010

Hon’ble Tarun Agarwala, J.

Heard Mr. Sidhartha Singh, the learned counsel duly assisted by

Mr. D. Barthwal, the learned counsel for the petitioner and Mr. Ramji

Srivastava, the learned counsel duly assisted by Mr. Deepak Sharma,

the learned counsel for the respondent.

2.

The present writ petition has been filed against the order dated

29.05.2010 passed by the District Judge, Dehradun in Misc. Civil

Appeal No.76/2010, whereby the District Judge allowed the appeal and

has set aside the order passed under Order 9 Rule 13 of the Code of

Civil Procedure (hereinafter referred to as ‘C.P.C.’) and has further set

aside the decree passed by the trial court.

3.

The essential facts, which led to the passing of the decree by the

trial court is, that on 31^st March, 2009, the right to adduce the evidence

of the plaintiff was closed and the trial court fixed 20^th April 2009 for

the evidence in chief of the defendant. The affidavit of the defendant

and evidence was filed by the defendant on 23^rd April, 2009 and the

court fixed 26^th May, 2009 for the cross examination of the defendant.

It transpires that on 26^th March, 2009 the plaintiff filed an application

for the recall of the order dated 31^st March, 2009. This application was

allowed by an order dated 29^th May, 2009 and the plaintiff was directed

to file her evidence on affidavit on payment of cost of Rs.1000/- on or

before 07^th July, 2009. The trial court fixed 07^th July, 2009 for the cross

examination of the plaintiff.

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4.

It transpires that the trial court became vacant and accordingly,

the case could not proceed on 07^th July, 2009. The ordersheet indicates

that various dates were fixed on account of the vacancy of the court. In

this regard, the plaintiff filed a writ petition No.1405 of 2009 (M/S)

alleging that she was leaving for the United States of America on 30^th

August, 2009 and that a direction be issued that her cross examination

may be recorded by the trial court on or before 30^th August, 2009. The

writ court disposed of the said writ petition at the admission stage itself

without issuing notice to the defendant, by an order dated 25^th August,

2009 directing the trial court to cross examine the plaintiff petitioner

before she leaves for the United States of America.

5.

It transpires that the order of the High Court was filed before the

trial court on 27^th August, 2009. Since the trial court was vacant, the

file was placed before the District Judge, who by an order of the same

date, transferred the case to the court of the Vth Additional Civil Judge

(S.D.), Dehradun. The relevant file was placed before the court on 28^th

August 2009 and the trial court issued notice to the counsel for the

defendant as required under Rule 89-A of the General Rule (Civil)

intimating him that the case would be taken up on 28^th August, 2009.

The process server intimated the court that the counsel for the defendant

Sri J. K. Jain could not be found and that his Munshi (Clerk) had orally

informed that Sri J. K. Jain was no longer appearing as the counsel for

the defendant and that the file of the case had been taken away by the

defendant. In the light of the report submitted by the process server, the

court below found that the notices had not been served and issued

directions for the issuance of a fresh notice and fixing 29^th August, 2009

as the next date. On 29^th August, 2009, the process server again

submitted a report intimating that the chamber of Sri J. K. Jain was

locked and, therefore, the notices could not be served. In the light of

this report, the court fixed 31^st August, 2009 and directed that fresh

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steps be taken for the issuance of notice to the cou