BRAJ BHUSHAN AND OTHERS Vs. PRAVEEN AND OTHERS

JUDGEMENT

(1.) The instant Civil Misc. Restoration Application 13944 of 2013 [Brij Bhushan (since dead) & others v Praveen & others] has been made under section 22 Rule 5 of the High Court Rules with a prayer to allow the instant application and restore the Second Appeal No. 743 of 2010 to its original number after recalling dismissal order dated 17.12.2012 so that the aforesaid second appeal may be heard on merits otherwise the appellants /defendants shall suffer irreparable loss and injury.

(2.) In the accompanying affidavit filed by one Yogendra, respondent/defendant it has been deposed that he is doing pairwi on behalf of rest of the appellants in the above noted appeal as such he is fully acquainted with the facts deposed therein. The aforesaid second appeal was filed under section 100 C.P.C. before this Court against the impugned judgement and decree dated 09.04.2010 passed by the learned Additional Sessions Judge, Court No. 13, Ghaziabad in Civil Appeal No. 41 of 1998. After hearing the parties, this Court was pleased to grant an interim order in favour of the deponent/appellants and that the aforesaid appeal was listed on 17.12.2012 in the daily cause list of Court no. 27 and in the revised call, learned counsel for the appellants namely; Sri Salil Kumar Rai was on his legs in Court No. 26 with regard to Criminal Misc. Writ Petition No. 54680 of 2007 (Vidya Devi v Arjun Singh & another) and Sri V.P. Rai, another learned counsel was on his legs in Court No. 46 with regard to Criminal Misc. Writ Petition 14247 of 2011 (Achin & others v State of U.P. & others) and due to the aforesaid reasons, both the learned counsel could not make themselves available before the Court on call even in the revised daily cause list. It was further deposed that there was no intentional absence on the part of the learned counsel for the appellants, therefore, in the circumstances it would be just and expedient to restore the aforesaid second appeal on its original number by recalling the aforesaid order passed in the Second Appeal and hearing the same on merits.

(3.) Plaintifff/Respondent Praveen Kumar has filed counter affidavit and deposed that he is the plaintiffs/respondents and, being real brother of remaining plaintiffs/respondents, he is doing pairwi on their behalf in the aforesaid second appeal. He is fully authorised and acquainted with the facts and as such he has sworn on their behalf and deposed therein. He has admitted that after hearing both the parties, interim order in favour of the appellants was granted but after passing of the said order, appellants sought adjournment after adjournment and were never interested in disposal of the appeal on merits and deliberately avoided final hearing of the appeal and to enjoy the fruits of the same, they deliberately misused the interim order granted in their favour. He further deposed that when the aforesaid second appeal was put up before this Court on 30.11.2012 & 10.12.2012 for final hearing, this Court observed the (mis)conduct of the appellants and directed them to argue the appeal on merits. He made part of the affidavit, copy of the order dated 30.11.2012 & 10.12.2012. On 30.11.2012, this Court observed that for the last three days learned counsel for the appellants is deliberately avoiding the final hearing of the second appeal which has already been admitted. The lower court record has come to this court. He is enjoying the interim order and learned counsel for the appellants has sent illness as usual. On previous two occasions, he has also sent illness slip and in the totality of the circumstances list on 10.12.2012 peremptorily. It was warned to the learned counsel for the appellants in the aforesaid order that in case learned counsel for the appellants avoid the hearing, the interim order shall stand vacated.