Raj Narain Singh and Ors. vs Raghunandan Singh & Anr.

D.C. Srivastava, J.—An application dated 1751996 was moved for restoration of the writ petition dismissed in default on 841996. Since there was delay in moving the restoration application, a separate application for condonation of delay has been filed and an affidavit of Harihar Singh has also been filed.

It is stated in the affidavit of Harihar Singh that this writ petition was listed along with Second Appeal No. 2125 of 1979 between the parties on 841996 and both were dismissed in default of the petitioners and appellant. On the same date restoration application for appeal and writ petition was moved as both were connected and only one application was moved. On 1751996 the second appeal was listed, but not the writ petition aforesaid. The restoration application of the second appeal was allowed. It is, therefore, this application for restoration of the writ petition.

Counter affidavit has been filed in which it is stated that the writ petition and the second appeal were not connected and that there is no ground either for condonation of delay or for restoration of the writ petition and delayed restoration application has been filed only for delaying the disposal of the writ petition.

Rejoinder affidavit was also filed.

The learned counsel for the petitionersapplicants contended that since writ petition and the second appeal were listed on the same date, namely 841996 and he could not appear in the revised list, both, the writ petition and the second appeal, were dismissed in default. On the same date, namely, 8496, restoration application was moved in the second appeal under the impression that both were connected. The restoration application in the second appeal was allowed. On 1751996 the second appeal was listed but not the writ petition. When it came to the notice of the learned counsel for the petitioners that the writ petition was" dismissed by a separate order, hence, there is good and sufficient cause for restoration of the writ petition and also for condonation of delay in moving the restoration application.

The learned counsel for the respondents on the other hand vehemently contested the restoration application and contended that it is nothing but a device to delay pending execution in the executing court.

The learned counsel for the respondents made special reference to para 10 of the counteraffidavit of Nand Kishore Singh wherein it is stated that on 1751996 Harihar Singh was present in village and not at Allahabad, hence, the affidavit filed by Harihar Singh on 1751996 appears to be very suspicious and if this affidavit is ignored there remains no sufficient cause either for condonation of delay or for restoration of the writ petition dismissed in default. Para 10 of the rejoinder affidavit of Harihar Singh was also referred by the learned counsel for the respondents, which reads as under:

"That the contents of para No. 10 of the counteraffidavit are denied as they are vague fictitious and totally false."

He also cited two cases in support of his contention that such denial is not enough and the counteraffidavit has to be accepted and if it is accepted it becomes suspicious that affidavit dated 1751996 was filed by Harihar Singh. The first case is Bux Singh v. Joint Director of Consolidation, U.P. Lucknow and others, AIR 1966 Allahabad 156. In this case it was laid down that the averments made in the counteraffidavit if not found controverted by a rejoinder affidavit must be accepted to be true and correct. However, in the case before me the contents of para 10 of the counteraffidavit have been controverted in para 10 of the rejoinder affidavit stating that these allegations are vague, fictitious and totally false. The words, "totally false" mean total denial of the correctness of the allegations in para 10 of the counteraffidavit and if in rejoinder affidavit it has not been stated that Harihar Singh was present at Allahabad on 1751996 it does not become unreliable rejoinder affidavit or a rejoinder affidavit which has not controverted para 10 of the counter affidavit. The second case of Juggi Lal Kamla Pat v. Ram Janki Gupta and another, AIR 1962 Allahabad 407 is distinguishable on facts. In this case no counteraffidavit was filed to controvert the affidavit filed in support of the restoration application, hence, it was held that it was not open to the court to disbelieve the allegations of the plaintiff in the affidavit. Since in the case before me rejoinder affidavit has been filed it has to be accepted,

It may also be mentioned that confusion was there in the mind of the learned counsel for the petitioners that the writ petition and the second appeal were connected. It is for this reason that in the restoration application dated 841996 moved in the second appeal it was mentioned at the top that the second appeal No. 2125 of 1979 was connected with writ petition No. 4213 of 1991. In the affidavit in support of the restoration ap4 jcation moved on 841996 filed by Rajmani Tiwari, Clerk of Sri A.N. Bhargava, Advocate, also similar description was given that the second appeal and the writ petition were connected together. Factually it is incorrect that the writ petition and the second appeal were connected together, but i is correct that on 8496 the second appeal as well as the writ petition was listed for hearing. On these facts it can safely be said to be a case of misunderstanding in the mind of the learned counsel for the petitioners that the writ petition and the second appeal were connected together. This misunderstanding was clarified on 1751996 when the writ petition was not found listed in the cause list though the second appeal was listed on that date. Immediately restoration application was moved and an affidavit was also filed on the same dates. The affidavit dated 1751996 is duly sworn in before the Oath Commissioner of the High Court. It cannot be said to be a suspicious document.

The misunderstanding of the counsel for the reasons given above constitutes sufficient cause and ground for condonation of delay in moving the restoration application and also allowing the restoration application. Both the applications are, therefore, allowed and the order dated 841996 dismissing the writ petition No. 4213 of 1991 (Raj Narain Singh and others v. Raghunandan Singh and another) is recalled and the writ petition is restored to its original number so also the stay order is restored.

List the writ petition on the date on which the second appeal No. 2125 of 1979 has been ordered to be listed.