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2013 DIGILAW 271 (ALL)

Rajendra Prasad Tiwari v. Krishna Kumar Dixit

2013-01-22

B.AMIT STHALEKAR

body2013
B. Amit Sthalekar, J.— By this writ petition the petitioner is challenging the order dated 4.1.2003 passed in Misc. Case No.25 of 1999 and revisional order dated 21.9.2004. The facts of the case, in brief, are that one Smt. Savitri Devi widow of late Ayodhya Prasad filed a suit no.259 of 1979 seeking partition of the house in question. During the pendency of the suit she died and on the basis of will which is stated to have been executed by Savitri Devi in favour of the respondent Krishna Kumar Dixit (now deceased), the said respondent got himself substituted in the said suit. The petitioner had filed written statement denying the claim of the respondent. In fact the suit was barred by limitation of more than 12 years. The suit was decreed ex parte vide order dated 19.12.1994 in default of appearance of the defendant/petitioner's counsel. On 13.1.1995 the defendant/petitioner filed an application under Order IX Rule 13 C.P.C. supported by an affidavit to recall the ex parte decree. This application was registered as Misc.Case No.8 of 1995, which was also dismissed in default on 5.1.1996 as the petitioner's counsel failed to appear on the date fixed. Thereafter, an application was filed on 25.1.1996 under Section 151 CPC being Misc. Case no.1 of 1996 for recalling of the order dated 5.1.1996 and to restore the original Misc. Case No.8 of 1995. This application was also dismissed in default for non-appearance of the petitioner's counsel on 13.2.1998 Thereafter, on 18.3.1999 when the petitioner came to know about rejection of application under Section 151 C.P.C. he filed an application, which was registered as Misc.Case No.25 of 1999 for recall of the order dated 13.2.1998. This application was rejected by the impugned order dated 4.1.2003. Aggrieved the petitioner filed a Civil Revision which was dismissed by the impugned order dated 21.9.2004. Hence the present writ petition. I have heard Sri P.C.Jain, learned counsel for the petitioner. None appears for the respondents. Sri Swapnil Kumar, learned counsel for the respondent states that the sole respondent has expired and his heirs have been substituted and brought on record on 12.7.2011 but he has no instructions from the said newly added respondents no.1/1 and 1/2. No other counsel has put in appearance for respondent nos.1/1 and 1/2. None appears for the respondents. Sri Swapnil Kumar, learned counsel for the respondent states that the sole respondent has expired and his heirs have been substituted and brought on record on 12.7.2011 but he has no instructions from the said newly added respondents no.1/1 and 1/2. No other counsel has put in appearance for respondent nos.1/1 and 1/2. Sri Jain submitted that the ground taken by the court below for rejecting the Application no.25 of 1999 is that the application under Section 151 C.P.C. was not maintainable and was barred by limitation and the application should have been filed under Order 9 Rule 4 for which limitation was 30 days whereas application under Section 151 C.P.C. was filed beyond 30 days and in any case same was not maintainable. Sri Jain, however, submitted that along with the application an affidavit of the petitioner as well as his advocate was filed, which have also been placed on record as Annexure-7 and Annexure-10 respectively and in the said affidavit the petitioner as well as his counsel have categorically stated that the counsel had suffered fracture in his leg in the month of November, 1997 and was confined to bed for more than six months. This fact ought to have been considered by the court below while considering the application under Section 151 C.P.C but in the impugned order dated 4.1.2003 there is not even a whisper that the counsel for the petitioner had suffered fracture in his leg and had been confined to bed for more than six months and, therefore, he could not attend the court. He further submitted that the petitioner was a resident of Jhansi whereas the partition suit No.259 of 1979 had been filed in the court at Agra and the miscellaneous application was also filed in the said proceedings in the court at Agra and, therefore, the petitioner had no knowledge of the various dates on which the case was being taken up and he was not aware as to when his counsel suffered the fracture in his leg and could not appear on the date fixed, and when he came to know on 18.3.1999 that his application had been rejected for want of prosecution, on the very next day i.e. 19.3.1999 he filed a recall application along with his affidavit as well as affidavit of his advocate. Sri Jain has relied upon a decision of the Supreme Court reported in (2000) 3 SCC 54 G.P.Srivastava vs. R.K.Raizada and others wherein a similar question came up for consideration and in the case before the Supreme Court the young nephew of the counsel of the appellant before the Supreme Court had died in road accident on the date of hearing and the applicant himself was not present on the date fixed on account of his employment. The Supreme Court, however, held that sufficient cause shown in the application for recall must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. In the present case also it will be seen that the petitioner was residing at Jhansi whereas the suit for partition was filed in the court at Agra and the fact that the counsel for the petitioner had suffered from fracture in an accident was stated in the affidavit of the counsel, which was filed in the proceedings and also stated in a separate affidavit filed by the petitioner. This fact ought to have been considered while passing the impugned order dated 4.1.2003.. From a perusal of the impugned order dated 4.1. 2003 as well as revisional order dated 21.9.2004 it will be seen that there is no reference to these facts that the counsel for the petitioner had suffered a fracture in his leg in an accident. In view of the facts noted above, and the law laid down by the Supreme Court in the case of G.P .Srivastava (supra), the impugned orders dated 4.1.2003 and 21.9.2004 are set aside. The writ petition is allowed. The matter is remitted to the trial court to reconsider the application of the petitioner for recall taking into consideration the affidavit filed by the petitioner as well as affidavit of his counsel. This exercise shall be completed by the court below within a period of three months from the date a certified copy of this order is received by him. _____________