MAKHAN SINGH Vs. XITH ADDITIONAL DISTRICT JUDGE AGRA

JUDGEMENT

(1.) Pleadings have been exchanged and counsel for the parties agree that the writ petition itself may be disposed of finally under the Rules of the Court.

(2.) The petitioner filed suit No. 693 of 1987 for cancellation of sale deed dated 9-4-1984 and further that the petitioner be declared owner of the disputed plot. The contesting respondents filed their written statement. A number of issues were framed on 21st March 1988. However, subsequently an additional issue was framed on 10th February, 1989 which was to the following effect :

(3.) This issue related to as to whether the provisions of Act No. 45 of 1988 dealing with benami transactions were attracted. The trial Court had also framed other issues including the issues No. 5 and 9 as to whether any cause of action had arisen and as to what relief the plaintiff is entitled to. The trial Court fixed 27-2-1989 for disposal of issue No. 10 only. However, due to Advocates strike the case could not be taken up, though it is averred that the plaintiff was present on that date. The Court, thereafter fixed 6th April, 1989 for disposal of issue No. 10, which date was adjourned on the request of counsel for the petitioner and 27th April, 1989 was fixed for disposal of issue No, 10. On 27th April, 1989 neither the petitioner nor his counsel appeared before the Court and the Court after disposing of issue No. 10 went on to dismiss the suit of the petitioner by its order dated 9th May, 1989. Having come to know of the aforesaid order, the petitioner moved an application for recall of the aforesaid ex parte order on the ground that he had fallen ill on the date fixed and he also annexed a copy of the medical certificate issued by his doctor. After giving opportunity to the parties, the trial Court rejected the application by its order dated 18th July, 1991 holding that the application under Order 9, R. 9, CPC was not maintainable. Aggrieved against the aforesaid, an appeal was preferred which was also rejected by an order dated 31st May, 1993. This writ petition challenges the aforesaid three orders dated 9th May, 1989, 18th July, 1991 and 31st May, 1993.