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Mangat v. Vith A.D.J. - WRIT - C No. 16558 of 1989 [2006] RD-AH 13641 (18 August 2006)


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Judgment Reserved on 31.7.2006

Judgment Delivered on 17.8.2006


Civil Misc. Writ Petition No. 16558 of 1989

Mangat Versus VI Additional District Judge, Saharanpur and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

O.S. NO 226 of 1984, which was filed by respondents 3 and 4 Abdul Gafoor and Gufran Ahmad against petitioner for specific performance of agreement for sale was, decreed exparte on 23.11.1985. Thereafter restoration application under Order 9 Rule 13 C.P.C was filed for setting aside the exparte decree, which was rejected on 21.8.1987 by III Addl. Civil Judge, Saharanpur. Appeal filed against the said order being Misc. Appeal No. 61 of 1989 was also dismissed by VI Additional District Judge, Saharanpur on 2.8.1989, hence this writ petition.

Both the courts below have held that summons of the suit was personally served upon the petitioner on 11.10.1984 and on the back of the summons petitioner affixed his thumb impression. The courts below have held that petitioner nowhere denied his thumb impression on the summons. Thereafter on 31.10.1984, petitioner sought one months further time for filing written statement. Another application was filed on 14.11.1984 by the petitioner. Defendant petitioner himself filed an application seeking temporary injunction against the plaintiff in the suit alongwith affidavit, which was dismissed on 15.11.1984. Even thereafter on different dates, different applications were filed by the defendant petitioner in the suit. Written statement was also filed by the petitioner in the suit. However on 24.10.1985 no one appeared for the petitioner hence suit was directed to proceed exparte and on 23.12.1985 suit was decreed exparte. Restoration application was filed on 22.1.1987 (i.e. after more than one year). In the application, it was accepted that in July 1986, defendant petitioner had received notice from the court in respect of execution of the exparte decree. However, the version of the defendant was that thereafter some Panchayat was held in which plaintiff respondent had agreed to take back the suit.

True copy of the restoration application is annexure 3 to the writ petition. In the said application, it was no where stated that neither petitioner had engaged any counsel in the suit nor filed any application, affidavit or written statement. The said averment was taken through amendment in the restoration application. Both the courts below rightly disbelieved the version of the defendant petitioner. Summons of the suit were personally served upon the defendant. He filed different applications, affidavit and also applied for temporary injunction in the suit. It can not therefore be said that he was not aware of the proceedings of the suit. He admitted that in July 1986 notice of execution had been served upon him still restoration was filed in January 1987. He further admitted that in October 1986 also he received notice from the executing court.

I do not find least error in the findings of fact recorded by the courts below regarding knowledge of the defendant petitioner about pendency of the suit and his appearance therein.

Accordingly, there is no merit in the writ petition hence it is dismissed.




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