MAHADEO Vs. KANHAI LAL

JUDGEMENT

(1.) THE present appeal is being directed against the judgment and order dated 8 -9 -2000 passed by VIIth Addl. District and Sessions Judge, Allahabad dismissing the application for restoration and refusing to set aside the order dated 15 -5 - 1981 passed in Appeal No. 662 of 1978 Ram Shankar v. Kanhai Lal and others, arising out of order dated 24 -9 - 1977 passed by Munsif First, Allahabad in Suit No. 795 of 1955 between Kanhai Lal and others v. Sharda Prasad, as time barred.

(2.) THE brief facts of the case are that a Suit No. 795 of 1955 was filed by the respondent for eviction of the appellants from the premises in dispute. The suit was decreed vide order dated 24 -9 -1977 and the appellants were evicted from the premises in dispute. Against the order dated 24 -9 -1977 an Appeal No. 662/78 was filed. During the pendency of the appeal, several dates were fixed and the records were summoned, but the records could not be received. On 9 -4 -1979 the appeal was transferred to the Court of VIIIth Addl. District Judge. It is contended that an order was passed for reconstruction of the file. The Counsel for the appellanta attended the Court on 5 -7 -1980, the case was adjourned for 5 -8 -1980. On 5 -8 -1980 the case was kept without date since the record of the Court was not available. However, the order -sheets shows that the case was adjourned to 2 -3 -1989 and thereafter on several dates. On 17 -11 -1980, the case was further transferred from the Court of VIIIth Addl. District Judge to the Court of VIIth Addl. District Judge. Admittedly, no information was given to the appellant about the transfer of the case. It appears that on the receipt of file, the Court of VIIIth Addl. District Judge on 22 -12 -1980 passed an order to send notice to the parties. There is an endorsement on the order sheet dated 7 -2 -1981 that no notice were sent to the appellants. On 7 -2 -1981 the Court again ordered to send notices. It appears that on 16 -3 - 1981, the appellant moved a Substitution Application in the Court of VIIIth Addl. District Judge. The order -sheet shows that an application was filed in the Court of VIIIth Addl. District Judge was subsequently sent from the office of VIIIth Addl. District Judge to the Court of VIIth Addl. District Judge which was acknowledged on 17 -3 -1981. However, the claim of the appellants are that they were not aware about the transfer of case and therefore, under the bona fide belief, they filed a Substitution Application on 16 -3 -1981 which was also received in the Court of VIIIth Addl. District Judge. The appeal was decided ex -parte on 15 -5 -1981 in the absence of both the parties. Appellant moved Restoration Application for recalling of the order dated 15 -5 -1981 on 12 -4 -1994 alongwith an application for condonation of delay which is placed on record as Application No. 4 -C alongwith an affidavit in support of application which is on record as Document No. 5 -C. The VIIth District Judge, Allahabad on 8 -9 -2000 rejected the application for condonation of delay and also rejected the restoration application being belated the delayed. Being aggrieved by the said order, the present appeal has been filed.

(3.) IN an affidavit, filed in support of the application for condonation of delay, it was averred in paragraph 9 onward that on 16/17 -2 -1994 the decree holder alongwith the peon of the Court same to the appellant residence and stated to evict the house, otherwise, the house hold articles would be drawn out with the help of police. Thereafter, the appellant met Sri Triloki Nath Clerk of Counsel Sri Asthana and told about the happening. He met the Counsel for Lower Court. Thereafter, the appellant met Sri S.K. Sinha, Advocate and his father Sri V.C. Srivastava who suggested for inspection of the file. On the inspection of the file, it was found that the appeal No. 662/77 was rejected on 15 - 5 -1981 in absence of both the parties by the VIIth Addl. District Judge and both the parties had no knowledge about the said order. By the grace of God and by luck, he was living in the house without any eviction. It has also been alleged that inspite of great effort, the file could not be made available and therefore, on 24 -3 -1994, the appellants have also filed a Complaint to the District Judge and requested for issuance of direction to search out the file. The District Judge had also directed to search out the file. Ultimately on 6 -4 -1994, the appellants had received reply of question answer, in which, it has been stated that the process of searching out the file is continued. Thereafter, the application was filed. On the aforesaid reasons, the appellants prayed for condonation of delay. In reply to the affidavit filed in support condonation of delay, an affidavit was filed by the respondent which is Annexure -4 to the affidavit filed in support of the Stay Application. The perusal of affidavit filed shows that the averment made in paragraph 9 onward had simply been denied without giving any reason for denial. The Addl. District Judge had rejected the application for condonation of delay on the ground that the appellants had moved Substitution Application on 16 -3 -1981, but did not pursue the application for substitution, moreover, since he had attended the Court on 16 -3 - 1981 and moved substitution application, it is presumed that they have noticed that the appeal was transferred to VIIth Addl. District Judge. He further observed that the Order -sheet shows that the appellants were not vigilant in pursuing the appeal. He relied upon the judgment of Hon'ble apex Court in Capt. Harish Uppal v. Union of India and others, reported in ALR 1994 (23) page 574, in which the Hon'ble apex Court held that the parties should persue their right and remedies promptly and not sleep over their rights. Learned VIIth Addl. District Judge further observed that in the instant case cause for delay as shown by the appellants are neither sufficient nor have any substance. The delay is 13 years long wherein the appellant has just slept over his appeal. He further observed that the appellant have filed affidavit in support of their application, wherein they have stated that on 5 -8 -1980, they alongwith their Counsel had attended the Court and on the same day, a case was kept without date, so the appellants accordance to their affidavit have personal knowledge that on 5 -8 -1980 the appeal was without date. Since there is no averment in the affidavit that it was due to wrong advice of Counsel that they did not attend the Court after 5 -8 -1980, they could not take advantage of the ruling for wrong advice of Counsel and did not shown sufficient cause. The learned Judge accordingly refused to condone the duly and accordingly rejected the restoration application filed beyond time. Having heard learned Counsel for the parties.