SANKATHA PRASAD Vs. II ADDITIONAL DISTRICT JUDGE VARANASI

JUDGEMENT

(1.) THIS writ petition arises in the following circumstances. The two petitioners were defendants in original suit no. 392 of 1960 which was filed against them by respondents 2, 3 and 4 praying for injunction, possession and demolition, etc. The suit was dismissed for default on 21-9-1970. On the application of respondent no. 2 under Order 9, Rule 9 CPC Misc. Case No. 238 of 1970 was registered which again was dismissed for default on 3-7-1971. On the next day respondent no. 2 filed another application for restoration which was registered as Misc. Case No 194 of 1971 and this was also dismissed for default on 27-11-1971. Respondent no. 2 again filed Misc. Case No. 224 of 1971 which was allowed by order dated 12-8-1972 The petitioners filed a revision before the District Judge against the order, dated 12-8-1972. The revision was allowed by order, dated 25-9-1973 and the matter was remitted to the trial court to decide Misc. Case No. 224 of 1971 again in accordance with law. After remand the trial court allowed the restoration application filed by respondent no. 2 on 18-12-1971. The revision filed by the petitioners against that order was dismissed and subsequent writ petition filed in the High Court was also dismissed. It is submitted that the petitioners' special leave petition before the Supreme Court was also dismissed. Thereafter by order, dated 28-2-1981 (Annexure 6) the trial court rejected the first application, dated 21-10-1970 filed by respondent no. 2 praying for restoration of the suit which had been dismissed for default on 21-9-1970. Against the order dated 28-2-1981 respondent no. 2 filed Misc. Appeal No. 96 of 1981. After hearing both sides and on consideration, the II Additional District and Sessions Judge, Varanasi by his order, dated 10-9-1981 (Annexure 7) set aside the order of the trial court and allowed the restoration application of respondent no. 2 filed by him on 21-10-1970 subject to payment of cost of Rs. 50/- within ten days. The appellate order dated 10-9-1981 (annexure 7) is under challenge in this wrir petition.

(2.) LEARNED counsel appearing for the petitioners submitted that the lower appellate court had no justification to set aside the order of the trial court rejecting the restoration application filed by respondent no. 2. It is also submitted on behalf of the petitioners that cost of Rs. 60/- which had been directed by the trial court by its order dated 23-7-1979 in Misc. Case No. 224 of 1971 allowing the restoration application dated 18-12-1971, to be paid by respondent no. 2 to the petitioners had not been paid and as such respondents 2, 3 and 4 should not have been permitted to proceed with the suit. It is seen that the averments in this regard are contained in paragraphs 4 and 7 of the writ petition. A perusal of the lower appellate court order shows that no such grievance had been put forward by the petitioners before the lower appellate court. Further, the application of the petitioners to the court for withdrawal of the cost was filed on 29-7-1981, more than two years after the cost had been awarded. In the circumstances it is too late for the petitioners to now urge that respondents 2, 3 and 4 should not be permitted to proceed with the suit on account of non-payment of the cost as per directions contained in the order dated 23-7-1979 of the trial court.

(3.) THE other points urged before the lower appellate court have been considered in detail and the court has allowed restoration application of respondent no. 2 which he had filed on 21-10-1970 subject to payment of cost of Rs 50/-within ten days from the date of the order. No grievance has been made before this Court that the cost, as awarded by the lower appellate court, has not been paid by respondent no. 2 within time. On consideration of the whole matter, I am of the view that the discretion having been exercised by the lower appellate court in allowing the restoration application of respondent no. 2, does not call for interference by this Court under Article 226 of the Constitution.