• Restoration of Writ petition dismissed for default and creation of third party right in mean time

We won a West Bengal Co-operative Tribunal judgment in June 2018 setting aside an order of the Arbitrator which was in favour of our tenant. Our tenant who was the respondent in the Tribunal proceedings filed a writ in the Calcutta high court in November 2018, however due to some computer error in the high court the case was listed even before parties were serviced the summons. Naturally due to non appearance of all parties the suit was dismissed. 
The tenant/respondent filed a restoration application well after two months of the dismissal in Feb 2019, but after that did nothing to pursue the restoration application till July 2021, in between there was the pandemic.
In the intervening period the Co-operative executed the order of the Tribunal in November 2020. The tenant had earlier obtained the membership of the society which was challenged by us and the Tribunal in its order of July 2018 declared his membership illegal. Naturally, the society while executing the order cancelled his membership and declared us the legal heirs to be the member.
Further to this, the tenant who had also put up a suit against us in the local civil court in Durgapur had wanted to use the order of the Arbitrator as additional evidence under o. 41 r. 27 which was allowed by the local civil court which we challenged in the High court in a review. The high court decided not to interfere with the o. 41 r. 27 order of the local civil court. Fortunately the day before the high court ordered non interference in our review petition, the Tribunal had set aside the award of the arbitrator and ordered in our favour. NOW, the plaintiff/tenant lost interest in pursuing the matter of additional evidence in the lower appeal court. The lower appeal court at this juncture went for final appeal hearing. Naturally, the tenant prayed for time saying that a restoration petition has been filed on the dismissed appeal, the appeal court gave him time, but ultimately he neither pressed the restoration matter in the High court nor did he bother to bring a stay order from the high court in spite of repeated comments from the lower appeal court judge (i say comment as i have yet to receive cert. copies of the order). This went on for a year i.e. the entire 2019. The lower appeal court finally started the appeal hearing and the tenant's advocate started heir final arguments. It was only when we were to start our final arguments the pandemic struck and proceedings are still stuck in the lower appeal court.
On 1st July 2021 the Co-op socy put up notice for the AGM on 1st Aug 2021 and this led the tenant to send us a legal notice mentioning that his petition for restoration is now about to be heard. We recieved the petition on 2nd Aug 2021, but on 1st Aug 2021, the AGM decided to restore our membership and passed resolution that legal steps be taken for eviction of the tenant.

My question:- What line of defense should we take in the restoration petition hearing?

Thanks
Sumit Basu
Asked 1 month ago in Property Law
Religion: Hindu

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9 Answers

Inform the court of dilatory tactics being adopted by plaintiff 

 

2) that he is merely taking adjournment and not appear on dates fixed for hearing

 

that no case is made out fir restoration of petition dismissed for default 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

In the restoration petition filed by the petitioner in the high court, after receiving the notice you may have to file your objections to the petition filed by him seeking restoration.

You may have to state that the petitioner is not very serious about the case which he had lost in the tribunal which can be evidently seen from his lethargic approach before high court in his original writ petition after a long delay.

Thus his intention behind filing the writ petition itself was to just trouble and torture the respondent with his usual dilatory tactics to drag on the issue endlessly.  

You can be in touch with your advocate who will suggest more such ideas to confront the restoration petition. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

Dear sir,

You can appear before the court and state that the opposite parties are using delaying tactics and using unfair means to abuse the court proceedings. You can state the merits of the case has already been decided by the previous court and this whole proceeding is made with the object to harass us.

Thank you 

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

1. this is a complete hotch potch!

2. i do not understand how the order of the Co-operative Tribunal is being challenged by filing a writ petition when there is an alternate remedy of appeal which is already filed and is pending

3. if the appeal itself is pending and is about to be concluded, then how can the writ petition be maintained in the first place?

4. if the writ petition itself cannot be maintained then nothing would also survive in the restoration application

5. so your stand in the hearing for the restoration application would be to contend that the writ is not maintainable as the matter is before the appeal court and the writ petition itself should be dismissed on this count and consequently nothing would survive in the restoration application 

Yusuf Rampurawala
Advocate, Mumbai
6435 Answers
54 Consultations

5.0 on 5.0

It is necessary to peruse various orders cited by you ti advice 

 

only after going through papers can we advice whether to file writ or not 

Ajay Sethi
Advocate, Mumbai
84070 Answers
5480 Consultations

5.0 on 5.0

B can very well prefer an appeal if he is aggrieved by the impugned orders/judgment.

If he wants to file a writ petition against the orders of court 2A, he may very well get the opinion of his own lawyer who knows the entire details of all the cases  and would suggest the  maintainability of the writ petition or not. 

Thus without scrutinizing the entire case related papers a vague opinion to your blunt question would be a misguidance. 

T Kalaiselvan
Advocate, Vellore
74174 Answers
1203 Consultations

5.0 on 5.0

Dear Sir,

1. B can prefer a writ against the order of court 2A.

2. one can appeal to a high court if not satisfied by the orders passed by the tribunals.

Thank You!

Anik Miu
Advocate, Bangalore
2499 Answers
26 Consultations

4.9 on 5.0

Court 2A has allowed appeal of B. So A is aggrieved. If there is no other forum to which the judgment of Court 2A can be challenged by A, he can definitely file a writ petition in the High Court

A's suit against B and the pending appeal before Court 1A is a different and independent proceeding. That will take its own course. 

Order of Court 2 is set aside by Court 2A in appeal. The appeal is pending. So it does not matter whether Court 1A had admitted the evidence on record or not qua the order of Court 2. 

 

Yusuf Rampurawala
Advocate, Mumbai
6435 Answers
54 Consultations

5.0 on 5.0

Yes he can prefer the same

Prashant Nayak
Advocate, Mumbai
24239 Answers
51 Consultations

4.4 on 5.0

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