HUSAIN BAKSH Vs. ALA BAKSH

JUDGEMENT

(1.) THERE is sometimes a tug of war between technicality and substantial justice, between legal niceties and the importunate demands of equity and I am inclined to hold that unless the dictates of the former are utterly compelling the voice of equity should not be choked. This is precisely what has happened in the instant case. The applicant is the respondent in a Second Appeal and has presented this application under section 151 CPC praying that the order of a learned Judge of this Court recalling his own earlier order rejecting the appeal under Order 41, Rule 11 CPC passed behind the back of this applicant be recalled. The learned Judge who passed the order has since retired and hence the case has been listed before me.

(2.) HUSAIN Baksh and another (defendant-appellants) filed a second appeal in this Court which was listed for admission under Order 41, Rule 11 CPC before Hon'ble A. N. Varma, J. on 2-9-1981 when he passed an order that the record of the lower court be summoned at the appellants' expense and meanwhile the appellants shall not be dispossessed from the house in dispute. When the copy of the stay order was filed in the executing court the plaintiff-appellant put in appearance in this Court through Sri Wajahat HUSAIN Khan, Advocate, and filed a counter affidavit. He prayed that the ex-parte stay order be vacated. The Second appeal was thereafter listed for admission on 5-4-1982 under Order 41, Rule 11 CPC before Hon. Deoki Nandan, J. as he then was, and the name of Sri Wajahat HUSAIN Khan Advocate was also shown in the cause list as counsel for the applicant. The learned Judge after hearing the counsel for the applicant and perusing the record of the case found that the appeal was concluded by findings of fact and hence dismissed the same by a speaking order and vacated the interim stay. It is alleged on behalf of the applicant that the counsel, namely, Sri Wajahat HUSAIN Khan had also assisted the Court in the disposal of the appeal. Thereafter the applicant filed in the executing court a copy of the order dated 5-4-1982 dismissing the appeal and vacating the stay order. It is stated on behalf of the applicant that he was then approached by the appellants who requested him not to execute the decree for the period during which the applicant was to remain outside India for his Haj piligrimage. The allegation is that taking advantage of the breathing space thus vouchsafed to the appellants by the applicant on account of sheer compassion the appellants turned round and instead of vacating the house in dispute applied for review of the order dated 5-4-1982. No copy of the review application was served on the counsel for the applicant nor was any notice issued to him. On 26-5-1982 the learned Judge recalled his previous order dated 5-4-1982. This was obviously behind the back of the applicant and such order cannot be sustained.