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Syed Azhar Ali Shah v. Ist A.D.J. And Other - WRIT - C No. 5148 of 1990 [2007] RD-AH 5880 (2 April 2007)


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(Court No.28)

Civil Misc. Writ Petition No. 5148 of 1990

Azhar Ali vs.  Ist Additional District Judge, Gorakhpur and others


In Misc. Case No.65 of 1987 Azhar Ali Shah vs. Jamal Raziq Ali Shah which was a restoration application under Order 9 Rule 13 C.P.C., trial court/Civil Judge, Gorakhpur passed order on 11.8.1989.  Through the said order restoration application was allowed ex-parte.  Against the said order plaintiff Jamal Raziq Ali Shah filed civil revision no.155 of 1989. Ist Additional District Judge, Gorakhpur allowed the revision on 11.1.1990, set aside the order of the trial court and remanded the restoration application back for fresh decision.  The said order of the revisional court dated 11.1.1990 has been challenged through this writ petition.  

Trial court had only stated that as the defendant asserted that he had no knowledge of the suit hence it was not proper to deprive him of his right to contest the suit.  In my opinion revisional court rightly held that such course is not warranted under law.  Defendant had taken up the case that he had no knowledge of the suit or the date fixed therein.  Trial court was required under law to give positive finding on the said plea.  It is correct that if restoration application has been allowed then revisional court or appellate court should not lightly interfere in the matter.  However, in the instant case the trial court did not record any finding regarding absence of knowledge of defendant hence revisional court had no option except to remand the matter.  

There is no merit in the writ petition hence it is dismissed.   However, it is clarified that the trial court is at  complete liberty to  decide  as to whether the ground taken by the defendants in his restoration application was proved or not.




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