SATYA PAL AND PREMWATI Vs. JAGDISH PRASAD

JUDGEMENT

(1.) S. N. Srivastava, J. This application filed by Satya Pal and Smt. Premwati, wife of Satyapal, arrayed as respondents 2 and 3 in the Second Appeal seeks recall of judgment dated 3-11-2004 rendered by this Court whereby second appeal was allowed- decreeing the suit accordingly.

(2.) THIS application presented on 30-3-2005 with an accompanying affidavit encapsulated a prayer for condonation of delay in filing recall application. The grounds enumerated by the respondents there in the application are that the second appeal was dismissed as withdrawn on 9-4-2003. Consequent upon this application for recall of order dated 9-4-2003, notices were issued. However, the said application came to be dismissed for default on 8-10-2004. Thereafter, a fresh application for recall of order was moved by the applicants. THIS application culminated in being allowed on 7-4-2004 and as a sequel, the appeal was restored to its number. It would appear that notices were issued thrice and in the ultimate analysis, impugned judgment was passed. Paragraph 12 of the affidavit filed in support of Recall Application contains averments to the effect that respondents had not received any notice for final hearing of appeal nor were they ever apprised by their Counsel about progress in the said appeal; that the respondent Satya Pal had already sold off the property through sale deed dated 22-11-1999 that he came to know on 7-3- 2005 through one Luqman Ahmad about decree having been passed by the High Court when he happened to be in civil Courts. Paragraph 18 of the affidavit contains averment to the effect that the respondents had engaged Ashfaq Ahmad Ansari, Advocate to represent them in the case but at the same time, it is also averred that the aforesaid Advocate did not file any Vakalatnama on their behalf nor did he appear before the Court and hence the order was passed without any opportunity of hearing to him.

(3.) UNDER Order 3 Rule 4 of the C. P. C. and also regard being had to the phraseology of Vakalatnama executed in favour of the Counsels aforesaid, it leaves no manner of doubt that the Counsels whose name figured in the cause list on the date of hearing had the authority to represent the applicants but they for reasons inexplicable, did not turn up even to argue the case in order to assist the Court. In the above conspectus, the conclusion is irresistible that the respondents initially absented themselves with a purpose to a design and subsequently, emerged to plead that they had no knowledge of the progress in the matter. It does not commend to the Court that a person who is represented by array of Counsels could plead to be oblivious or ignorant of the progress of the case notwithstanding the fact that every conceivable efforts were employed by the Court by various orders initially to serve the respondents by registered post and subsequently, by seeking attendance of the Counsels who were representing the respondents since the year 1990. In the circumstances, it leaves no manner of doubt that the respondents deliberately avoided to appear in the case either personally or through their Counsels.