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Hamid Hasan And Others. v. Hameed Ullah And Others. - WRIT - C No. 27272 of 2004 [2006] RD-AH 541 (9 January 2006)


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                                                                                       Court No.38

Civil Misc. Writ Petition No. 27272 of 2004

Hamid Hasan and others         Vs.        Hameed Ullah and others

Hon'ble Vineet Saran, J

Original suit no. 482 of 1989 was filed by Alijaan against Bhoorey. Petitioners are the heirs and legal representatives of plaintiff Alijaan and the respondents are the heirs and legal representatives of defendant Bhoorey. The suit was for specific performance of a contract. It is not disputed that Bhoorey was duly served with the notice in the suit. However, since he did not contest the suit, an exparte decree dated 6.12.1991 was passed in favour of the plaintiff. After passing of the decree, Execution case no. 7 of 1992 was filed by the petitioners. During the pendency of the execution case, on 28.9.1992, according to the petitioners, the sole defendant Bhoorey expired and thus in the execution case, an application for substitution was filed on 13.10.1992. Thereafter on 15.4.1997, the Respondent nos. 1 and 2 filed an application under Order 9 Rule 13 C.P.C. with the prayer for recall of the order dated 1.10.1991, whereby suit no. 482 of 1989 was directed to proceed exparte against the defendant, and also for recall of the order dated 6.12.1991, whereby the suit was decreed. The said application, which was registered as Misc. Case No.10 of 1997, was also dismissed in default on 28.4.2000. Yet another application for recall of the order dated 28.4.2000 was filed, which was registered as Misc. Case No. 54 of 2000. On 15.12.2001, the trial court rejected Misc. Case No. 54 of 2000 by which a prayer had been made to recall the order dated 28.4.2000. Challenging the aforesaid order, the respondents filed Appeal No. 32 of 2001, which has been allowed by the appellate court on 21.5.12004. Aggrieved by the said order, the petitioners have filed this writ petition. It may be relevant to note that in the meanwhile, in pursuance of an order passed in Execution Case No. 7 of 1992, on 30.4.2001 the Court executed the sale deed in favour of the petitioners and the names of the petitioners have also been mutated on 16.9.2003.

I have heard Sri M.A.Qadeer, learned counsel for the petitioners as well as Sri R. Sisodia, learned counsel appearing for the respondents and have perused the record. Counter and rejoinder affidavits have been exchanged and with the consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage itself.

The conduct of the respondents throughout has been quite negligent towards the case. In the beginning, the defendant did not appear in the suit proceedings, which was decreed exparte. Then the execution case has also been allowed and the sale deed has been executed by the Court. The restoration application was filed on 15.4.1997, which was more than five years after the passing of the exparte decree dated 6.12.1991. The said application was also dismissed in default on 28.4.2000. The reason given for non appearance on 28.4.2000 is that the respondent was ill. Admittedly the said application was not supported by any medical certificate to support the same. The trial court, vide its order dated 15.12.2001, has rejected the said application on the ground that there was no evidence to show that the defendant was ill on the said date because of which he could not appear in Court. The trial court also observed that the sale deed has already been executed in favour of the petitioners. The appellate court has, however, allowed the appeal of the defendant.  Perusal of the application filed by the defendant also does not show as to from what illness the respondent-applicant was suffering because of which he could not appear on the date fixed. In any case, there were more than one applicants and it has not even been stated in the application as to which one of the applicants was ill and as to why the other applicant-respondents could not attend the case on the date fixed. Even otherwise, the past conduct of the respondents also shows that they have been negligent in pursuing the case. In my view, no indulgence is required to be given to a party which does not pursue his case vigilantly. The reasons for allowing the appeal as given in the order dated 21.5.2004, do not appear to be justified and thus the same is liable set aside.

Accordingly, for the foregoing reasons, this writ petition stands allowed. The order dated 21.5.2004 is quashed. However, there shall be no order as to cost.

Dt/- January 9, 2006



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