GIRJA SHANKER Vs. HARI SHANKER TIWARI

JUDGEMENT

(1.) Heard learned Counsel for the parries. Original Suit No. 235 of 1989 was instituted by respondent No. 1, Harishanker Tiwari against petitioner and Om Prakash respondent No. 2 (Earlier petitioner had filed O.S. No. 36 of 1987 against respondent No. 1, which was dismissed. Appeal filed against the same was also dismissed-para-3 of the writ petition). In the suit of 1989 petitioner filed written statement on 13.2.1991. Proceedings of suit of 1989 were stayed due to pendency of appeal against the decree passed in the suit of 1987. However, the said appeal was dismissed on 25.4.1995 and thereafter proceedings of suit of 1989 recommenced through order dated 3.7.1995. In the said suit on 26.7.1995 order to proceed ex parte was passed (on 3.7.1995 it had already been directed that suit would proceed ex parte against Om Prakash, defendant respondent No. 2). On 26.7.1995 petitioner defendant No. 1 also did not appear hence it was directed that the suit must proceed ex parte against him also i.e., ex parte against both the defendants. The suit was decreed ex parte on 11.3.1998. Defendant respondent No. 2 filed application for setting aside the ex parte decree dated 11.3.1998. The said application was allowed on 16.9.1999 by Additional Civil Judge, Senior Division/III Additional C.J.M., Etawah holding that the suit had wrongly been decreed ex parte on 9.3.1998 as no evidence was available in the file not even affidavit of the plaintiff while in the said order it was mentioned that plaintiff had adduced evidence to prove his case. For five years suit could not be decided. On 26.3.2004 i.e., after about four and a half years from the date of setting aside the ex parte decree petitioner defendant No. 1 filed application for permission to contest the suit and to cross-examine the plaintiff and his witnesses. The said application was rejected on 30.10.2004 by Additional Civil Judge (Senior Division), Etawah. Against the said order petitioner filed Civil Revision No. 94 of 2004, which was dismissed by A.D.J. (Fast Track), Court No. 1, Etawah on 27.7.2005. Orders dated 30.10.2004 and 27.7.2005 have been challenged through this writ petition.

(2.) Order dated 16.9.1999 through which ex parte decree dated 9.3.1998 was set aside was not confined only to defendant respondent No. 2 who had filed restoration application. Accordingly, both petitioner and defendant No. 2 could very well participate in the proceedings. Even on 3.7.1995, petitioner was present. It was stated by the petitioner in his application dated 26.3.2004 that he was ill on 26.7.1995 hence he could not appear. Thereafter, what he did for about nine years was not stated. The assertion that he was poor was utterly meaningless. Meanwhile he had also filed a suit. Revisional Court also mentioned that he was contesting other proceedings also. In any case, how poverty prevented him from contesting proceedings for nine years was not mentioned. What was the income and what were the expenses of the petitioner was not stated. How suddenly after 3.7.1995 petitioner became poor was not stated. Accordingly, I do not find any error in the impugned orders.

(3.) However, in view of the Supreme Court authority in Arjun Singh v. Mohindra Kumar, 1964 AIR(SC) 993 even though petitioner is not entitled to ask the Court to put back the clock but he can very well participate in the proceedings prospectively even if order to proceed ex parte is not set aside. Accordingly, it is directed that even though petitioner is not entitled to pray for recalling the plaintiff's witnesses for cross-examination, however he is entitle to produce his evidence and his learned Counsel would be fully entitled to advance arguments in the suit before the Trial Court. With the above observations, writ petition is disposed of.