Court No. - 4 Case :- WRIT - C No. - 45980 of 2010 Petitioner :- Ram Kishore Respondent :- State Of U.P. & Another Petitioner Counsel :- S. K. Singh Respondent Counsel :- C. S. C.,Chandra Jeet Yadav Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner and Sri Chandrajeet
Yadav for the respondent.
Suit was filed by the plaintiff-respondent for cancellation of sale
deed. The defendant-petitioner put in appearance and filed written
statement. Thereafter, he absented himself from the proceedings
and the suit was decreed exparte vide judgment and decree dated
17.1.1991. The defendant-petitioner filed an application dated
22.1.1991 under Order IX Rule 13 C. P. C. The said application
was dismissed in default on 4.7.1994. On 16.7.1994 another
application was filed to recall the order dated 4.7.1994. This
second restoration application also came to be dismissed in default
on 25.3.1996. After more than 3-1/2 years, third restoration
application was filed on the allegation that son of petitioner who
was living in Bombay fell seriously ill and the petitioner went to
Bombay where he also suffered paralysis and after getting well he
came back and made enquiries then came to know about the order
dated 25.3.1996. The trial court has disbelieved the explanation
submitted by the petitioner on the ground that he was continuously
appearing in the criminal case going on against him and the
allegations that he went to Bombay and fell ill were totally false
and dismissed the application vide order dated 29.3.2007. The
defendant-petitioner went up in appeal. The appellate court has
also affirmed the findings recorded by the trial court and dismissed
the appeal.
It has been urged by the learned counsel for the petitioner that
lenient view ought to have been taken in the matter and even if the
defendant-petitioner was negligent, the plaintiff-respondent could
have been compensated by imposing costs. Reliance in support of
the contention has been placed on the decision of the Hon’ble
Apex Court in the case of G. P. Srivastava Vs. R. K. Raizada and
others, AIR 2000 Supreme Court – 1221.
I have considered the argument advanced by the learned counsel
for the petitioner and perused the record.
The facts of the case before the Hon’ble Apex Court relied upon by
the learned counsel for the petitioner were totally different. In the
said case, the suit was decree exparte on account of the failure of
the counsel to appear on the date fixed. The counsel had failed to
appear because of death of his nephew in road accident. In the said
circumstances, the Hon’ble Apex Court found that exparte
judgment and decree was liable to be set aside on payment of
Rs.5000/- as costs to the other side. In the present case, the
petitioner after filing written statement on 21.12.1987 did not
participate in the proceedings and the suit was decreed exparte on
17.1.1991. The two restoration applications filed by him were
successively dismissed in default. Admittedly, the third restoration
application was filed after 3-1/2 years and the petitioner was
continuously appearing in the criminal case going on against him
in the same district.
In the back-ground of above facts, no illegality appears to have
been committed by the two courts below in rejecting the
application. It is well settled that a litigant, who is not vigilant, is
not entitled to be extended the benefit of Section 5 of the
Limitation Act. The petitioner though made allegation that he went
to Bombay where he fell seriously ill but no evidence, whatsoever,
was filed in support of the said allegation. The two courts below
appear to be right in recording finding that petitioner has been
moving restoration application and getting it dismissed in default
in order to linger on the proceedings.
In view of the above facts and circumstances, the writ petition
being devoid of merits stands dismissed in limine.
Order Date :- 5.8.2010
Dcs