Noor Mohammad v. 7th. , Additional District Judge Lucknow
2014-09-02
DEVENDRA KUMAR UPADHYAYA
body2014
DigiLaw.ai
JUDGMENT Devendra Kumar Upadhyaya, J. Affidavit filed today be taken on record. 2. Heard learned counsel for the petitioner and learned counsel appearing for respondent nos.3 and 4. 3. A suit for recovery of possession and demolition was filed in the year 1979, which was registered as Regular Suit No.256/1979. After institution of the suit, it was transferred to the court of First Additional Munsif, Lucknow. The petitioner moved an application under Order 6 Rule V of the C.P.C. for furnishing him better particulars. The case was fixed for filing of written statement on 18.11.1980. However, particulars to the petitioner could be furnished only on 06.12.1980. The matter was thereafter listed on 11.02.19981, on which date, a general date in all the cases was fixed on account of strike call given by the ministerial staff of the court. The case thereafter was ordered to be proceeded ex parte on 10.03.1981. The suit was transferred on 02.05.1981 to the court of Vth Additional Munsif, Lucknow and it was decreed ex parte on 02.02.1982. An application was moved to set aside the ex parte decree dated 02.02.1982. On 26.05.1990 the application moved under Order 9 Rule XIII of the CPC was rejected on 19.05.1993 by the learned trial court. Against the order dated 19.05.1993, the petitioner-defendant filed an appeal, which too, was dismissed on 25.04.1995. 4. These are the two orders dated 19.05.1993 and 25.04.1995 passed by the learned trial court and the appellate court respectively, which are under challenge in this petition. 5. Learned counsel for the petitioner submitted that on 11.02.1981, the general date was fixed on account of the striking ministerial staff of the court and thus, he could not know about the next date which was fixed for 10.03.1981, when the learned trial court ordered the suit to proceed ex parte. He has further stated that though the suit was transferred by means of an order dated 02.05.1981 to the court of Vth Additional Munsif, however, no such information was ever given about the transfer of the case, to the petitioner, on account of which, the petitioner could not attend the case and this resulted in ex parte decree passed on 02.02.1982. 6.
6. The submission of learned counsel for the petitioner is that the reasons indicated by the learned trial court for rejecting the application moved by the petitioner under Order 9 Rule XIII of the CPC are not tenable as the grounds given by the petitioner in his application have not been appreciated in their correct perspective, inasmuch as, the knowledge of the general date which was fixed on 11.02.1981 on account of the striking ministerial staff, could not be gathered by the petitioner and further no information about the regular suit being transferred to Vth Additional Munsif was given to the petitioner and these facts have not been appreciated by the courts below correctly. 7. It is true that the application for setting aside ex parte decree in the instant case was moved by the petitioner after expiry of the period of about eight years, however, this Court cannot loose sight of the fact that on 11.02.1981, a general date was fixed which could not be noticed by the petitioner and thereafter the case was transferred on 02.05.1981 and about this fact also, no information could be received by the petitioner and it is in these circumstances that the suit proceeded ex parte which was ultimately decreed on 02.02.1982. 8. The time gap between the ex parte decree and moving of the application by the respondent under Order 9 Rule XIII of the CPC, though appears to be sufficiently large, however, it is not the time lag which plays pivotal role for considering a restoration application, rather the cause for such delay is the most crucial factor which needs consideration by any court while considering the case like the present one. Hon'ble Supreme Court, and this Hon'ble Court as well, have been consistently of the view that the Courts should take a liberal view on the question of "sufficient cause" and should lean towards providing hearing to both the sides. Regard can be had to the case of Nanhey Lal Dubey vs. Additional District Judge, reported in [ 2008 (26) LCD 446 ]. 9. Thus, in the instant writ petition, the issue which has arisen needs consideration in view of the aforesaid dictum of this Court that "sufficient cause" should be considered liberally and further that endeavour should be made to provide hearing to both the parties in a given case. 10.
9. Thus, in the instant writ petition, the issue which has arisen needs consideration in view of the aforesaid dictum of this Court that "sufficient cause" should be considered liberally and further that endeavour should be made to provide hearing to both the parties in a given case. 10. In view of aforesaid discussions, the writ petition is allowed and the impugned orders dated 19.05.1993 and 25.04.1995 passed respectively be the learned trial court and the appellate court below are set aside. Regular No.256 of 1979 is restored to its original number on a payment of cost of Rs.5000/- to be deposited before the trial court within a period of ten days from today. 11. Keeping in view the fact that the suit was instituted in the year 1979, the learned trial court is directed to proceed with the case on day-to-day basis and expedite the proceedings of the suit and conclude the same, in any case, within a period of six months from the date a certified copy of this order is produced before the court below. 12. It is further provided that either of the parties to the suit shall not seek any unnecessary adjournments. The adjournment may be granted only under the orders of the learned trial court, that too, only in exceptional circumstances. The parties to the suit shall fully cooperate in the proceedings, failing which, it will be open to the learned trial court to impose appropriate cost on erring party.