ZAHEER ALAM Vs. DISTRICT JUDGE SHAHJAHANPUR

JUDGEMENT

(1.) S. U. Khan, J. Heard learned Counsel for the parties.

(2.) RESPONDENT No. 3 Basharat Hussain S/o Ata Ullah instituted a suit against his own father, i. e. , Ata Ullah respondent No. 4 (defendant No. 2) and petitioner Zaheer Alam (defendant No. l ). Suit was numbered as O. S No. 555 of 1982 on the file of Munsif Shahjahanpur. It was alleged in the plaint that the house in dispute initially belonged to Ata Ullah father of the plaintiff who orally gifted the same to the plaintiff, and petitioner defendant No. 1 was licensee in the said house on behalf of the plaintiff. The relief claimed in the plaint was for permanent prohibitory injunction restraining the defendants from making any construction in the house in dispute or damaging or demolishing the same. Separate written statements were shown to have been filed on behalf of both the defendants admitting the claim of the plaintiff. Thereafter Munsif Court No. 1 Shahjahanpur decreed the suit on 6-11-1982. The suit was decreed under Order XV, Rule 1, C. P. C. only and only on the basis of admission contained in the plaint. Order XV, Rule 1, C. P. C. is quoted below: "where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce the judgment. "

(3.) PETITIONER's restoration application being Misc. Case No. 195 of 1982 was dismissed in his default on 25-5-1984 (restoration filed by the plaintiff's father was registered as Misc. Case No. 199 of 1983 ). Thereafter restoration application was filed by the petitioner on 21-7-1984 for recalling the order-dated 25-5-1984. The said application was registered as Misc. Case No. 177 of 1984. Even though no counter- affidavit was filed to the affidavit filed in support of the said application and only oral objections were raised still the said application was dismissed as barred by time. In the application and the affidavit it was stated that petitioner came to know about the dismissal order on 20-7-1984, i. e. , one day before filing the restoration application. The trial Court did not disbelieve the said version still application was dismissed as barred by time. Trial Court held that no formal application for condonation of delay was filed.