IZHAR HUSAIN Vs. SARASWATI DEVI

JUDGEMENT

(1.) THIS appeal is directed against the order, dated 12 -12 -1985 passed by the IV Additional District Judge, Faizabad dismissing the application filed by the appellant for recalling of the order dated 16 -3 -1985. It appears that the respondent filed a suit for injunction against the appellants and the said suit was decreed. Against that judgment and decree dated 23 -12 -1982 an appeal was filed by the appellants but the same was dismissed for default on 12 -7 -84. On 4 -8 -84 an application for restoration of appeal was moved by the appellants and objections to this application were also filed by the respondent. On the date fixed i.e. 3 -12 -1984 none appeared and the restoration application was dismissed in default. On 3 -1 -1985 another application under Order XLI Rule 11 read with Section 151 C.P.C. was filed by the appellants which was again dismissed on 16 -3 -85, in the presence of the counsel for the respondent but this time the application was dismissed on merits. The appellants again moved an application under Order IX Rule 13 on 16 -4 -85. This application too was dismissed in default on 20 -7 -85 Thereafter another restoration application was moved which too was dismissed for default but the appellants' version was accepted and the order dated 20 -7 -85 was recalled back and the earlier application came up for consideration before the court. The appeal was heard before the First Appellate Court and the case was listed for judgment on 16 -3 -85. On that date the judgment was not ready and the case was adjourned. It seems that at the time of dictating judgment the court found certain difficulties and that is why it directed the respondent to file secondary evidence and granted time. This was extended from time to time and on 20 -5 -84 it was again adjourned to 12 -7 -84. On 12 -7 -84 the appellants and their counsel were absent and that is why their case was dismissed for non -prosecution. The explanation given by them is that because of certain difficulties he could not be present in the court and such pleas were taken by them before the court below. One of the pleas taken for restoration was that the court clerk gave him some incorrect date. An affidavit was also filed to that effect. Although from the order sheet it appears that process was filed in the case, this plea of the appellants rather stands negatived. Affidavit filed by the clerk of the counsel and the appellants was not considered to be not true but even then the court considered their plea on merits. The court found that the appellants were adopting delaying tactics.

(2.) IT was true that the conduct of the appellants is below board and is not proper. There was no clear explanation regarding other two appellants. But in the interest of justice one more opportunity could be given to the appellants for arguing the restoration application as it is for the court below to consider whether a case for restoring the application has been made out or not. It is in this way only, the appeal is being allowed on payment of Rs. 500/ - as cost to the respondent. The appeal is accordingly allowed and the order, dated 12 -12 -1985 passed by the IV Additional District Judge, Faizabad is set aside and he is directed to restore back the application for restoration which was rejected by the impugned order and he shall decide the same afresh on merits after hearing both the parties. The parties will appear before the court of Additional District Judge, Faizabad on 2 -5 -1986. The matter will be disposed of by the appellate court in the month of May, 1986 itself. The interim order passed by this court dated 23 -1 -86 restraining the respondent from raising any construction is discharged. The hearing will be given to the appellants only when the cost is deposited by them before 2 -5 -1986. Copy of this order may be issued to the parties' Counsel within three days of the moving application on payment of usual charges.