AIRPORTS AUTHORITY OF INDIA Vs. HARIYALI

JUDGEMENT

(1.) Heard Sri K.D. Nag, learned Counsel for the petitioners as well as Sri R.K. Srivastava, learned Counsel for the opposite parties. Through the instant writ petition, the petitioners have challenged the ex parte decree dated 28.5.1999, passed by the IIIrd Additional Civil Judge (Senior Division) Lucknow in Original Suit No. 386 of 1996, order dated 8.12.2000, passed by the same very Court on the application moved under Order IX, Rule 13, C.P.C. alongwith application under section 5 of the Limitation Act registered as Application No. C-5 in Miscellaneous Case No. 30-C of 1999 and also the order dated 12.1.2006, passed by the District Judge, Lucknow in Miscellaneous Civil Appeal No. 20 of 2001. Respondent No. 1 filed a suit for permanent injunction against the petitioners/defendants. Defendants were noticed. In response the defendant No. 1 appeared but subsequently he disappeared, therefore, the learned Court proceeded ex parte and held that there is a valid contract between the parties, therefore, the defendants/petitioners have no right to cut the trees and remove the tree guards and name plates displayed thereon.

(2.) Petitioners/defendants moved an application under Order IX, Rule 13, C.P.C. alongwith application for condonation of delay in filing the said application to recall the judgment and order dated 28.5.1999 with some delay. They explained the laches in the manner that at the first time they came to know about the ex parte judgment only on 16.8.1999 and immediately contacted the learned Standing Counsel to move the necessary application to recall the order, who inspected the file on 30th August, 1999 and prepared the application and filed the same just within two days thereafter. Thus, he explained that the delay in filing the application under Order IX, Rule 13, C.P.C. is not deliberate rather it is bona fide. Therefore, the delay deserves to be condoned.

(3.) Further for setting aside the ex parte decree he submitted that after inspection of the record it reveals that one Mr. Brijesh Saxena, learned Advocate had filed his Vakalatnama on behalf of Sri Arun Talwar, Air Port Director, Lucknow Air Port. Mr. Talwar filed an objection against the plaint in the year. 1996 itself. The Trial Court issued an interim injunction on 20.11.1996 which was time bound and after 19th December, 1996 it was not extended the next date was fixed on 7th January, 1997. On that date, lawyers were on strike. Therefore, the case was adjourned to 4th February, 1997 and 11th February, 1997 for hearing, but before reaching the said date, the case was transferred to the different Court. It is stated that the recipient Court never issued fresh notice or summonses to the defendants at registered address. It is further stated by learned Counsel for the petitioner that after 19th December, 1996, the Counsel representing the petitioners/defendants neither appeared in the Court nor communicated the progress of the case. Mr. Arun Talwar being defendant No. 3 was pursuing the case on his own level. He was transferred from Lucknow on 31.3.1998. As such the office of defendant did not have any knowledge about the case. Therefore, nobody could attend the proceedings of the Court and on 25th November, 1998 the Court proceeded ex parte and ultimately passed ex parte judgment on 28th May, 1999. It is accordingly stated by learned Counsel for the petitioners that the petitioners are not at fault. Therefore, the application under section 5 of the Limitation Act as well as the application under Order IX, Rule 13, C.P.C. deserves to be allowed. At this stage he points out one more fact that the department is governed under the Airport Authority of India Act, 1994 (in short "Act'). Section 20 of the Act provides that subject to the provisions of section 21, the Authority shall be competent to enter into and perform and contract necessary for the discharge of its functions under this Act. Section 2(sic) the Act defined the term" authority" as under: