TEK CHAND Vs. BALBIR SINGH

JUDGEMENT

(1.) Aggrieved by the order dated 12.2.1994 passed by the Additional District Judge, Faridabad, dismissing the appeal of the petitioner against the order dated 20.9.1993 passed by the Senior Sub Judge, Faridabad, the petitioner has preferred this revision petition and has prayed for setting aside the order dated 20.9.1993.

(2.) From the record, it is revealed that in a suit for permanent injunction filed by the plaintiff -petitioner an application was filed on behalf of the defendants for grant of permission to take manure from manure pits. After hearing the learned counsel for the pasties, the learned Senior Sub Judge allowed the application filed by the non -petitioners and permitted them to lift the manure. This order was passed by the Senior Sub Judge on 20.9.1993 and an appeal against that order was filed by the appellant on 6.11.1993. This appeal was accompanied by an application for condonation of delay. After hearing the parties, the learned Additional District Judge held that the appellant has failed to make out a case for condonation of delay. He, there fore, dismissed the application filed by the petitioner and also dismissed the appeal filed by him against the order dated 20.9.1993.

(3.) Shri Jain, learned counsel for the petitioner made strenuous efforts to persuade this court to exercise its revisional jurisdictional by arguing that the version given by the petitioner regarding the proceedings of the trial Court on 20.9.1993 should have been accepted by the appellate Court. Shri Jain argued that members of the Bar Association, Faridabad, had gone on strike on 30.9.1993 on account of alleged assault on Shri R.S. Rathore, Advocate and no one was present on behalf of the plaintiff -petitioner when the trial Court pronounced the order on the application filed by the defendant -non -petitioner. But on account of apparent mistake the presence of Shri Rathore came to be recorded in the proceedings sheet of the trial Court. Shri Jain submitted that though the petitioner was present in the court on 20.9.1993, he did not hear of the order permitting the defendant -non -petitioners to lift the manure and what he heard was that the order of status quo was paused by the trial court and if that was not the position, the petitioner would have certainly made an application for certified copy of the order and have challenged the same by filing an appeal. Learned counsel further submitted that immediately after acquiring the knowledge of the order or permission to the defendant -non -petitioner to lift the manure, the petitioner contacted his lawyer who in turn inspected the file after securing a certified copy of the order. Shri Jain pointed out that in pursuance of the direction given by this Court affidavit of the petitioner and his counsel Shri R.S. Rathore have been filed and there is no reason for the court to disbelieve or discard these Affidavits. Shri R.S. Rana, learned counsel for the respondents, submitted that the learned Additional District Judge has after due consideration of all the facts and circumstances recorded a finding that the case set up by the plaintiff for condonation of delay was not credible and, therefore, there is no justification for exercise of revision jurisdiction Under Sec. 115 of the Code of Civil Procedure.