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Deep Chand & Others v. Viith Addl District Judge & Others - WRIT - C No. 14532 of 1984  RD-AH 17208 (5 October 2006)
Civil Misc. Writ Petition No.14532 of 1984
Deep Chand and others vs. VIIth Additional District Judge & Others
List revised. No one appears for the respondents.
Heard learned counsel for the petitioners. Substitution application in respect of petitioner no.1 is allowed.
Respondent no.3 - Udaiveer Singh instituted suit for specific performance against the petitioner in the form of O.S. No.2 of 1974. The suit was decreed ex-parte on 14.3.1978 by IIIrd Additional Civil Judge, Agra. Thereafter restoration application alongwith delay condonation application was filed on 26.5.1978 which was registered as Misc. case (Kishun Pyari and others vs. Udaiveer Singh) and was rejected on 21.4.1979 copy of rejection order is Annexure-4 to the writ petition. In Annexure-4, number of the case is not given. Against the said order dated 21.4.1979 dismissing restoration application, civil revision no.11 of 1980 was filed. VIIth Additional District Judge, Agra has dismissed the revision on 20.7.1984 hence this writ petition.
Against the order rejecting restoration application under Order 9 Rule 13 C.P.C. Misc. appeal is maintainable under Order 43 Rule1 (d) C.P.C. However, this question was not raised before the revisional court by the respondents. In any case revisional jurisdiction is also part of appellate jurisdiction. Further this writ petition may be treated to be directed against the order of trial court itself. After 22 years I do not consider it appropriate to relegate the petitioners back to the remedy of Misc. appeal under the aforesaid provision.
In the restoration application and delay condonation application it had been mentioned that one of the defendants i.e. Sobran Singh was doing pairvi and he fell ill hence he could not attend the court on 14.3.1978. Trial court held that day-today delay should have been explained which was not done. It was further held that apart from Sobran Singh there were other defendants also and they could attend the case. Trial court also held that no medical certificate to prove the illness was filed. Revisional court held that in-fact medical certificate had been filed before the trial court in the form of paper no.102-C. Revisional court however held that nothing was stated regarding medical certificate in the affidavit hence it was not proved and it was nothing but waste paper. There was some error of date in the medical certificate also which was noticed by the revisional court.
In the matter of restoration and delay condonation such a strict view is not warranted unless a party applying for the same had been negligent. Medical certificate had been filed which was completely over looked by the trial court. Strict principles of evidence as are applicable for decision of suit on merit do not apply to restoration proceedings. Even otherwise it is not necessary to file medical certificate in order to prove illness. If there are several plaintiffs or defendants, normally pairvi is done by one of them. The view of the courts below that other defendants could look after the case is also therefore erroneous. Reference may be made to the authority of the Supreme Court reported in Collector Vs. Katiji AIR 1987 SC 1353. wherein principles for condoning the delay have been laid down.
Accordingly, I find that both the impugned orders are erroneous in law.
Writ petition is therefore allowed. Both the impugned orders are quashed.
Through the interim order dated 17.3.2001 passed on stay application no.88773 of 2000 it was directed that petitioners should deposit Rs.10,000/- per year as a condition of stay. Learned counsel for the petitioners states that in pursuance of the said order Rs.10,000/- were deposited each year for four years and total amount of Rs.40,000/- have been deposited by the petitioners.
As by virtue of the stay order ex-parte decree obtained by the plaintiff-respondent has remained stayed for 22 years hence it is essential to award good cost for restoration.
Accordingly, restoration application filed by the petitioners is allowed on payment of Rs.40,000/- as cost. The amount of Rs.40,000/- deposited under interim order dated 17.3.2001 passed by this court shall be paid to the plaintiff-respondent as cost of restoration. As no one has appeared on behalf of plaintiff-respondent hence before proceeding further the trial court shall issue notice to plaintiff-respondent Udaiveer Singh. Petitioners are directed to file certified copy of this judgment before trial court within six weeks from today.
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