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2020 DIGILAW 313 (ALL)

Ameer Hasan Aabdi v. Kaushar Ali

2020-01-28

SALIL KUMAR RAI

body2020
JUDGMENT : Salil Kumar Rai, J. 1. Heard the Counsel for the parties. 2. The present writ petition has been filed against the order dated 7.12.2011 passed by the Additional Civil Judge (Junior Division), Court No. 23, Azamgarh dismissing the recall/restoration application filed by the petitioner as well as against the order dated 10.10.2013 passed by the Additional District Judge, Court No. 7, Azamgarh dismissing the Misc. Appeal filed by the petitioner against the order dated 7.12.2011. 3. The facts of the case are that on 13.10.1979 the father of the petitioner instituted original suit No. 558 of 1979 for a decree cancelling the sale-deed dated 22.1.1973 executed in favour of the defendants and also for a permanent prohibitory injunction restraining the defendants from interfering in the possession of the plaintiffs over the suit property. The suit was decreed ex parte against the defendants on 30.3.1981 but the said decree was subsequently recalled on an application under Order IX, Rule 13 filed by the defendants/respondents. 4. Subsequently, Original Suit No. 558 of 1979 was dismissed in default due to the absence of the plaintiffs on 24.2.1986. The order dated 24.2.1986 was recalled and the suit was restored to its original number but again due to the absence of the plaintiffs when the case was called out for hearing, the original suit was dismissed in default on 19.2.1991. The order dated 19.2.1991 was recalled by order dated 24.2.1995 and the suit was restored to its original number but was again dismissed in default on 1.12.2001 because of the absence of the plaintiffs when the case was called out for hearing. 5. The petitioner filed application for recall of the order dated 1.12.2001 and to restore the case to its original number. The said case was registered as Misc. Case No. 38 of 2001 and the restoration application i.e., Misc. Case No. 38 of 2001 was again dismissed vide order dated 4.12.2007 under Order IX, Rule 3 of the Civil Procedure Code 1908. Subsequently, the petitioner filed an application on 11.2.2010 for recall of the order dated 4.12.2007 and to restore Misc. Case No. 38 of 2001 to its original number. On the said application, Misc. Case No. 46 of 2010 was registered in the Court of Additional Civil Judge (Junior Division) Court No. 23, Azamgarh who vide his impugned order dated 7.12.2011 dismissed Misc. Case No. 46 of 2010. Case No. 38 of 2001 to its original number. On the said application, Misc. Case No. 46 of 2010 was registered in the Court of Additional Civil Judge (Junior Division) Court No. 23, Azamgarh who vide his impugned order dated 7.12.2011 dismissed Misc. Case No. 46 of 2010. The appeal filed by the petitioners was dismissed by the Additional District Judge, Court No. 7, District Azamgarh i.e., Appellate Court vide its order dated 10.10.2013. 6. It is evident from the records that before the order dated 4.12.2007, the Original Suit No. 558 of 1979 in which the petitioners are the plaintiffs was dismissed in default three times and was subsequently restored on different applications filed by the plaintiffs. The dismissal of Misc. Case No. 38 of 2001 was the fourth dismissal in default because of the absence of the plaintiffs when the case was called out for hearing. It is apparent that the petitioners/plaintiffs have been negligent in contesting their case. The negligence of the plaintiffs is also evident from the fact that in Misc. Case No. 38 of 2001 (which was dismissed in default vide order dated 4.12.2007), the plaintiffs had not taken any steps as required by the Trial Court. The plea of the petitioners that dismissal was due to the negligence of their Counsel cannot be accepted and has rightly been rejected by the Courts below on the ground that the petitioners never changed their Counsel and had faith on their Counsel. 7. Apart from the aforesaid, the restoration application filed by the petitioners registering Misc. Case No. 46 of 2010 was filed almost two years after the order dated 4.12.2007 and the explanation for the delay in filing the same was not properly explained and has been rightly rejected by the Trial Courts. 8. The Court proceedings as narrated by the Trial Court and First Appellate Court indicate that the petitioners are not acting bona fide. 9. There is no illegality or perversity in the orders dated 7.12.2011 passed by the Additional Civil Judge (Junior Division), Azamgarh and 10.10.2013 passed by the Additional District Judge, Azamgarh so as to occasion interference by this Court under Article 226 of the Constitution of India. 10. The writ petition lacks merit and is dismissed.