j~i±lt`t' „.IN THE HIGH COURT 0F SEKKIRT •Odj,- *` ORDER SHEET Writ Petition (C) VldAYA INK .....5RE§.3ffi Serial No. of Order' 01.1 •12.05 Versus No. 49 of3fg9 2005 _ Petitioner/Appe]Iant Respondent Order with Signature Heard Mr. A.K. Upadhyaya, learned senior counsel assisted by Ms. Manita Pradhan, leaned counsel for the petitioner. Let a rule issue calling upon the respondents to show cause as to why an appropriate writ or order or direction appropriate in the case should not be issued/passed as prayed for by the petitioner. Rule is made returnable on 07.03.2006. The petitioner is required to take steps for service of not.ice upon the respondents within three days. In meantime, the impugned order dated 08.09..2005 passed in M.S. No. 9 of 2005 by the District Judge (East & North) at Gangtok shall not be given effect to it until further orders.of this Court. +* Office Note as to. action (if any} taken on Order I)L I L-. I L= 1-#r#froafu £TT`A¥.oL^#lt;- •.(\.:::`,,i;,I:.-`. ^D##1itT, I LL^Ac,„ed fuhi rLL -::::-_.-.-::L--:.-:::il--:-.-.--`-- .., Serial Date Office.`Notc as to No. of of Order with Signature action (if any) Order Order < taken on.Order _ _J±f- 2. II 3.2006 \ Heard Mr. A. K. Upadhyaya, learned [senior counsel assisted by Ms. Manita Pradhan, learned counsel for the petitioner. Service upon the respondent Nos. 2, 3 and 4 is complete, and apart from that Mr. Karma Chedup Bhutia, the respondent No.2 is present before this Court today. So far as respondent No.1 - Mr. Rahul Kumar Prasad is concerned, his presence is no`t so much necessary at this juncture, as the original case was proceeded against the respondent No.1 ex-parte, and in view of it, this case can be taken up today for hearing and accordingly, it is taken up and the same is disposed of finally on its o.wn merit with the following order :- On 8th September, 2005, the original Case being No.M.S.No. 9 of 2005 was fixed for filing evidence of the plaintiff, and on that day the learn`6.d counsel i, appearing for the plaintiff, i.e., the petitioner herein, filed an application for adjournment by contending inter alia, that the case was fixed on that day for framing of issues. The. prayer for adjournment was rejected by the learned Court below by holding,that the learned counsel for the plaintiff has no regard for the case, thus dismissing the suit on that day. It is an admitted p^osition that the case was not decided on merit.' Accordin`a `t6.us, the learned Court below ought to have granted the adjournment sought for by the plaintiff as 8th September, 2005 was fixed by the Court below for filing of affidavit-evidence of the plaintiff. Even assuming if the court was satisfied that no sufficient reason was assigned in the adjournment application, thus rejecting the prayer for adjournment, T_-T--_+ )_ a :f¢. b ._---J --lr-_- Order with Sigmture 4,Eb\ the learned Court below ought to have proceeded the ^~ case in accordance with law thus framing issuesand deciding the same on merit in accordance with law which was not done in the case in hand. On this ground{ alone, the impugned order deserves to be set aside, and accordingly, it is set aside with a direction to the court below to allow the plaintiff to file affidavit- evidence before the Court below and to proceed with the case and decide the same in accordance with law expeditiously, preferably within a period of three months, for which the parties are directed to appear before the Court below on 14th March, 2006 at 10.30 a.in. In the result the petition is allowed. No order as to costs. Registry is directed to communicate a copy of this order to the Court below, as early as possible. „sNu.rEie" •L_ ( A. P. Subba ) Judae Office Note as to. action (if any) taken -on Order #..try#l OAul£LCJ, a{ :[i..i++ q,3- -_- i-'