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Dinesh Chandra Pathak v. Judge Small Cuaseus And Others - WRIT - A No. 9992 of 1991  RD-AH 3660 (16 February 2006)
(Court No. 51)
Civil Misc. Writ Petition No.9992 of 1991
Dinesh Chandra Pathak and others Versus Judge Small Causes Court Hathras and others.
Hon'ble S.U.Khan J
All the substitution applications are allowed. Duplicate copy of substitution application in respect of respondent No. 17 dated 27.5.1998 has been supplied today which is taken on record, treated to be original and that application is also allowed.
List revised. No one is present for the landlord respondent.
Heard Sri S.C.Srivastava learned counsel for the tenant petitioner.
Landlord respondent filed SCC suit No. 40 of 1982 against tenants including the petitioners and proforma respondents (petitioners were defendant 4 to 9 in the suit). The suit was titled as Smt Durga Devi Ji Maharani and others Versus Shiv Narain and others on the file of JSCC, Hathras (at the relevant time it was included in district Aligarh). Tenants were served through Munadi and on their failure to appear, an order was passed on 3.11.1982 directing the suit to proceed exparte. The said order was recalled on the application of some of the defendants, other than the petitioners on 10.12.1982 (annexure XIII). It appears that the said recall order was confirmed only to those defendants who had applied for recall. Petitioner also filed application on 30.1.1991 for recall of the said order. JSCC, Hathras by eight page judgment rejected the said application on 16.2.1991. It appears that suit had not been decided until 1991 as there were several defendants and some of them had died and substitution applications were pending. Against order dated 16.2.1991 SCC Revision No. Nil of 1991 was filed which was dismissed summarily on 8.3.1991, by District Judge Aligarh hence this writ petition.
As the suit had not been decided hence restoration application was quite maintainable. Absolutely no harm would have been caused in case petitioners had been permitted to participate in the proceedings. The petitioners who applied for restoration had not been served personally. Names of two of the petitioners were wrongly mentioned in the plaint. They were served through beat of drum. In my opinion sufficient cause had been shown.
Accordingly writ petition is allowed.
Both the impugned orders are set-aside on the condition that petitioners pay Rs. 3000/- as cost to the landlords. Cost shall be deposited within two months from today before the trial court otherwise this order shall stand automatically vacated. Alongwith the cost, written statement must also be filed by the petitioner otherwise they must not be permitted to file written statement. As the suit is quite old hence it must be decided as expeditiously as possible.
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