IQBAL SIDDIQUI Vs. SMT. KISHWAR JAHAN

JUDGEMENT

(1.) THE appellant in the second appeal has made this application for recall of judgment and order dated 26 -10 -1989 passed by a learned Single Judge of this Court, who has since retired, on the ground that the said judgment is a nullity inasmuch as it was rendered without giving opportunity of hearing to the applicant. Applicant was defendant in a suit for eviction and recovery of arrears filed by the respondent Smt. Kishwar Jahan. Against the decree passed by the court below he had preferred second appeal in this Court. This second appeal was dismissed on merits by the learned Single Judge on 26 -10 -1989 observing therein that he had heard the learned counsel for both the parties. This statement in the judgment of the learned Single is seriously disputed by the learned counsel for the appellant. He submits that neither he had notice of the appeal nor he argued the appeal before the learned Single Judge. According to him the case was not shown either in the main cause list or in supplementary cause list nor any notice of hearing was given to him.

(2.) THE application was described as one under Section 151 read with Order XLVII R.1 of the Code of Civil Procedure. However, no ground has been raised in the application relatable to Order XLVII, R.1. The only ground raised is relatable to Section 151, C.P.C. In fact in the prayer cause section 151 alone has been invoked and not Order XLVII, R.1.

(3.) IN the counter -affidavit it has been asserted that the deponent was informed by Sri Faiyazuddin, Clerk of Sri Qamar Ahmad, Advocate of the respondent that he had received notice on 25 -10 -1989 that the case will be taken up on that very day and that on receipt of that notice he informed the respondent's learned counsel Sri Qamar Ahmad, who thereafter appeared before the learned Judge and expressed his inability to argue the case on that day as he did not have the file of the case whereupon the learned Judge informed Sri Ahmad that he had already heard the learned counsel for the appellant and that Sri Ahmad may argue the case the next day. The deponent further asserts that Sri Faiyazuddin informed him that Sri Qamar Ahmad argued the case the next day and the judgment was also delivered on that day.