KISHAN SINGH Vs. M N FAROOQUI AND OTHERS

JUDGEMENT

(1.) This matter arises out of a suit which was filed as far back in the year 1978 by the plaintiff. The suit was for declaration and permanent injunction and the property was situated at Rishikesh, Dehradun. The suit of the plaintiff was decreed by the Trial Court vide judgment and decree dated 25.04.1995. The finding of the trial court was that not only the plaintiff is the owner of the property but was in possession of the property. Aggrieved, the defendant filed a first appeal, which was also dismissed by the first appellate court vide judgment and order dated 21.11.2001. Thereafter the defendant filed the present second appeal before this Court on 13.02.2002.

(2.) When the second appeal was pending, the appeal of the defendant/appellant was dismissed for non- prosecution on 18.07.2007. No application for its restoration was moved by the appellant and in the meantime the sole appellant passed away on 26.09.2009. Thereafter the legal heir of the deceased appellant moved an application for restoration of the second appeal on 19.10.2010. An objection was raised by the learned Senior Counsel for the respondents as to the maintainability of the restoration application at the hands of the applicant, who was never substituted.

(3.) It must be mentioned here that since the applicant was not present before this Court on 08.07.2011, the applications moved by the appellant was dismissed by this Court for non-prosecution. Subsequently, the appellant moved restoration application for recalling the order dated 08.07.2011, which was allowed by this Court vide order dated 29.09.2011.