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Anand Swaroop Mittal v. State Of U.P. & Others - WRIT - C No. 31161 of 2006 [2006] RD-AH 10939 (5 July 2006)


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Court No. 23

Civil Misc. Writ Petition No. 31161 of 2006

Anand Swarup Mittal & others.............................................................Petitioners


Saeed Khan.......................................................................................Respondent


Hon'ble Umeshwar Pandey, J.

Heard the learned counsel for the parties.

The petitioners challenge the order of the appellate court dated 18.2.2006 whereby the respondent's appeal has been allowed and his application under Order IX Rule 13 C.P.C., earlier rejected by the trial court, has been allowed. The order of the trial court has also been set aside.

The petitioner-plaintiff filed Original Suit No. 660 of 1986 seeking relief of specific performance of contract against the respondents-defendants in which the respondents appeared after service of summons and also submitted written statement. Thereafter the case proceeded and in the meantime the respondents' application for amendment in the pleadings in written statement was also allowed. The respondents-defendants later on absented from the case which proceeded exparte and as such decreed, vide exparte judgment and decree dated 8.1.1982. On getting information of the said decree, the respondents-defendants moved the court under Order IX Rule 13 C.P.C. on 18.2.1992 which was dismissed by the trial court vide its order dated 30.4.1993. The defendants preferred appeal against the same which has been allowed by the appellate court holding that the respondents might not be having knowledge of the transfer of the suit from one court to other court and as such he had a good case for getting the exparte decree set aside.

It is contended by the learned counsel for the petitioner that the respondents did have the knowledge of the transfer of the suit which was directed by the District Judge vide order dated 26.4.1991. The file was received to the transferee court on 30.4.1991 and the defendants in that transferee court was present along with his counsel on 4.9.1991 when his application for amendment in the pleadings was allowed after hearing the parties. As such the ground which had been presented for non-appearance in the suit by the defendants leading the suit to proceed exparte, is wholly ingenuine.

May be that the respondent-defendant was present in the court and he did have the knowledge of the transfer of the suit from one court to the other court, but then if he has subsequently appeared in the case and moved the court for setting aside the exparte decree under Order IX Rule 13 C.P.C., it is always better that the matter in controversy between the parties should be decided after giving opportunity of hearing to both the parties and as such in the present facts and circumstances if the appellate court has set aside the exparte decree, this writ court, which is also a Court of equity, would be loath to interfere in such orders. It is, however, in the fitness of things that the suit being a very old one filed about about twenty years before has to be decided within a time frame given by this Court.

In the aforesaid view of the matter the petition is disposed of with this direction that the trial court after registering the suit at its original number will take up the disposal of the same and see that both the parties submit their evidence, whatsoever, they inclined to submit within one and a half months and thereafter the suit be finally disposed of by the court below within the next two months. The parties are directed to appear before the trial court on 14.7.2006. Any delay in disposal of the suit beyond the above time frame shall be explained to this Court by the trial court without waiting for any further reference from this end.




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