KHUB RAM Vs. CHEPRI

JUDGEMENT

(1.) THE appellants -applicants have filed the present application under Section 151 of the Code of Civil Procedure read with Section 5 of the Limitation Act with a prayer for recalling the order dated 20.10.2008 and with the further prayer to restore the appeal to its original number and hearing the same on merits. It has been averred therein that the appeal had been listed before this Court on 20.10.2008 when the Court had granted the appellants last opportunity to get served the respondent No. 1(d) subject to cost of Rs. 400/ -. In the event of non -taking of steps, the appeal was ordered to be dismissed for want of prosecution without any reference to Court.

(2.) IT is alleged that the applicants are illiterate, rustic villagers and no letters intimating this fact were received from the counsel, though when they contacted the counsel, they were shown dispatch numbers of these letters. It is alleged that probably the respondents, who are head -strong persons may have connivance with the postman manipulated the affairs in not allowing these letters to reach the appellants/applicants. Recently, the respondents had proclaimed that the appeal of the applicants stood dismissed and it is then that the applicants contacted their counsel and on inspection of the file, they acquired knowledge regarding the order dated 20.10.2008.

(3.) THE respondents, on the other hand, have filed reply wherein, in the preliminary submissions, they have alleged that the applicants have been grossly negligent in not pursuing the case. Repeated opportunities had been granted to the applicants to take steps for the service of legal representative of respondent No. 1, Chepri Devi, particularly, respondent No. 1(d) Swaru in CMP No. 367 of 2006, however, the applicants did not appear before the Additional Registrar on 03.09.2008 and 18.08.2008 and despite notices to this effect no steps had been taken till 20.10.2008 when final opportunity subject to cost was granted to the applicants. It is submitted that the present application has been filed in August, 2013 after gross and inordinate delay. It is denied that all the legal representatives of deceased respondent No. 1, Chepri Devi, are represented pursuant to an application to this effect. The respondents have further claimed that there is no just cause for recalling the order or setting aside the order, more particularly, when the same was passed nearly five years back and have accordingly prayed for dismissal of the application.