JAHURAN Vs. ADJ

JUDGEMENT

(1.) Heard Shri Siddharth Verma, learned Counsel for the Petitioner and Shri M.C. Gupta, learned Counsel for the contesting Respondents.

(2.) Original suit No. 602 of 1985 instituted by Plaintiffs-Respondents Nos. 2 to 7 against the Petitioners (which term includes Petitioners predecessor in interest) was decreed ex-parte on 28.1.1987. Defendants filed restoration application under Order 9 Rule 13 Code of Civil Procedure alongwith delay condonation application on 2.7.1987 (probably opening day after summer vacation of June, 1987). The restoration application was registered as Misc. Case No. 22 of 1987. Trial court/Additional Munsif (XV), Azamgarh allowed the delay condonation application as well as restoration application through judgment and order dated 20.12.1988 and set aside the ex-parte judgment and decree dated 28.1.1987. Against the said order Plaintiffs-Respondents filed Civil Revision No. 6 of 1989 which was allowed by Vith Additional District Judge, Azamgarh on 18.8.1989. Restoration order passed by the Trial Court was set aside and restoration application was rejected as barred by time hence this writ petition.

(3.) Normally an order restoring a suit is not interfered with in exercise of revisional jurisdiction under Section 115 Code of Civil Procedure In this regard, learned Counsel for the Petitioners has cited an authority of the Supreme Court reported in Ramji Dass and Ors. v. Mohan Singh,1978 ARC 496. The Defendants-Petitioners had taken up the plea that their Advocate had told them that until substitution application filed by the Plaintiffs, numbered as 19-A-2 was disposed of and notice to the heirs brought on record was issued, suit would not proceed on merit. Kharpattu one of the Defendants had died. However, his sons were already on record hence through application 19-A-2 their formal substitution was sought.