Haji Mohammad Usman vs Ram Swaroop (D) through his L.Rs. and Others

Sibghat Ullah Khan, J.—Heard Sri Pankaj Agarwal, learned counsel for the petitioner and Sri Dhiraj Srivastava learned counsel for respondent No. 1/2 Anil Kumar. In O.S. No. 256 of 1982. Ram Swaroop since deceased and survived by legal representatives v. Liaqat Ali and others, on 30.9.1983 an order was passed directing defendant No. 3 petitioner Haji Mohammad Usman to give his specimen thumb impression so that it could be compared with his thumb impression on his vakalatnama filed in Execution Case No. 2 of 1981. The relief claimed in the suit is for cancellation of decree passed in Original Suit No. 344 of 1980 on alleged compromise. Plaintiff was asserting that on the said vakalatnama there was thumb impression of defendant No. 3 but defendant No. 3 was denying that. It is very strange that for 30 years defendant No. 3 did not give his specimen thumb impression. However, for that fault alone suit could not be directed to proceed ex parte. Learned counsel for the petitioner states that due to refusal of defendant No. 3 to give his specimen thumb impression the court below could hold that the signatures on the disputed vakalatnama were of defendant No. 3 but suit could not be directed to proceed ex parte.

The first thing to be noticed in this writ petition is the description of the petitioner which is as follows:

Haji Usman Mohammad, care of Babu Miyan through Power-of-Attorney holder Gul Nawaj Ali.

The description is quite unique. Vakalatnama is signed by Gul Nawaj Ali and affidavit filed in support of writ petition is also of Gul Nawaj. From the perusal of the impugned orders it is clear that whereabouts of petitioner Haji Mohammad Usman are not known. Power-of-Attorney is alleged to be of 1999. It was filed after eleven years, i.e., on 14.7.2010. On 13.7.2011 the trial court directed the suit to proceed ex parte against the petitioner Haji Mohammad Usman defendant No. 3 in the suit. On the same date his learned counsel withdrew his vakalatnama. Thereafter petitioner through Gul Nawaj filed application on 20.2.2013 for comparison of signatures of the plaintiff. That application was rejected on 4.3.2013 noticing that the application was utterly belated and case was already proceeding ex parte against defendant No. 3. Thereafter, another application was filed by petitioner through Gul Nawaz on 6.3.2013 for recalling the order dated 13.7.2011. That application was rejected through the impugned order dated 6.3.2013 passed by Civil Judge (Senior Division), Saharanpur. Against the said order petitioner filed revision which was dismissed in limine by District Judge, Saharanpur on 1.4.2013 hence this writ petition.

In view of Supreme Court authority in Arjun Singh Vs. Mohindra Kumar and Others, , the only effect of order directing the suit to proceed ex parte is that the defendant concerned cannot ask the court to put back the clock.

In the peculiar facts and circumstances of the case it is directed that if defendant No. 3 Haji Mohammad Usman appears in person before the trial court then he must be permitted to participate in the proceedings of the suit from the stage on which they are on the date on which Haji Mohammad Usman petitioner appears in person. However, he must not be permitted to question the correctness of any order earlier passed. He must also not be permitted to file written statement if it has not already been done. However, he shall be permitted to cross-examine the witnesses of the plaintiff if they have not yet been examined. Similarly, if the evidence of the defendants is not over then petitioner No. 3 may be permitted to adduce oral evidence also otherwise not. Under no circumstances any power of attorney holder must be permitted to appear in the suit on behalf of petitioner Haji Mohammad Usman.

Impugned orders are modified as above.

It is directed that proceedings of the suit shall be concluded positively before the end of the year 2013. Absolutely no adjournment in any form shall be granted to the defendants. Plaintiffs shall also not be granted more than one adjournment under any circumstances. The trial court shall treat the thumb impression on the vakalatnama, filed in Execution Case No. 2 of 1981 to be of defendant No. 3, Haji Mohammad Usman. Writ petition is disposed of.