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Mohd. Kasim & Others v. Zahid Hasan - WRIT - C No. 27570 of 2007  RD-AH 11827 (12 July 2007)
Civil Misc. Writ Petition No. 27570 of 2007.
Mohd. Kasim and others. Vs. Zahid Hasan.
Hon'ble Janardan Sahai, J.
Heard the learned counsel for the petitioner Sri Sunil Kumar Srivastava and Sri Mohd. Arif, learned counsel for the respondents.
The suit for cancellation of sale deed filed by the petitioners was decreed ex parte against the defendant/respondent. The defendant/respondent filed an application under Order 9 Rule 13 Civil Procedure Code, which was dismissed by the trial court. The appeal against the order has been allowed by the Additional District Judge, Saharanpur by order dated 30.4.2007. It appears that the suit was dismissed in default but thereafter it was restored and the case of the defendant/respondent was that after the restoration he was not served with any notice. It was submitted by the petitioners counsel that in fact the petitioners did have knowledge and they were even present on the date the issues were framed. On the other hand it is submitted by the counsel for the respondent that on that date counsel was present but not the petitioners and counsel did not inform the respondent about the date. The finding recorded by the appellate court is that the counsel did have knowledge but there was nothing to show that the defendant has knowledge. The finding is one of fact. It was then submitted by the petitioners' counsel that while allowing the appeal and setting aside the ex parte decree the appellate court has not even compensated the petitioner by cost. Learned counsel for the respondent submitted that the respondent is ready to pay the costs. It is agreed between the counsel for the parties that a sum of Rs. 5,000/- would be paid as costs by the defendant/respondent. In view of this agreement while the order dated 30.4.2007 setting aside the ex partre decree is maintained but the dependent is directed to pay costs of Rs. 5,000/-, which may be deposited in the trial court within one month from today and the same may be withdrawn by the petitioners.
With the above directions the writ petition is disposed of.
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