Ram Kishore vs State of U.P. and Another

Krishna Murari, J.—Heard learned Counsel for the petitioner and Sri Chandrajeet Yadav for the respondent.

Suit was filed by the plaintiff-respondent for cancellation of sale deed. The defendant-petitioner put in appearance and filed written statement. Thereafter, he absented himself from the proceedings and the suit was decreed ex parte vide judgment and decree dated 17.1.1991. The defendant-petitioner filed an application dated 22.1.1991 under Order IX Rule 13 C.P.C. The said application was dismissed in default on 4.7.1994. On 16.7.1994 another application was filed to recall the order dated 4.7.1994. This second restoration application also came to be dismissed in default on 25.3.1996. After more than 3-1/2 years, third restoration application was filed on the allegation that son of petitioner who was living in Bombay fell seriously ill and the petitioner went to Bombay where he also suffered paralysis and after getting well he came back and made enquiries then came to know about the order dated 25.3.1996. The trial court has disbelieved the explanation submitted by the petitioner on the ground that he was continuously appearing in the criminal case going on against him and the allegations that he went to Bombay and fell ill were totally false and dismissed the application vide order dated 29.3.2007. The defendant-petitioner went up in appeal. The appellate court has also affirmed the findings recorded by the trial court and dismissed the appeal.

It has been urged by the learned Counsel for the petitioner that lenient view ought to have been taken in the matter and even if the defendant-petitioner was negligent, the plaintiff-respondent could have been compensated by imposing costs. Reliance in support of the contention has been placed on the decision of the Hon''ble Apex Court in the case of G.P. Srivastava Vs. Shri R.K. Raizada and Others,

I have considered the argument advanced by the learned Counsel for the petitioner and perused the record.

The facts of the case before the Hon''ble Apex Court relied upon by the learned Counsel for the petitioner were totally different. In the said case, the suit was decree ex parte on account of the failure of the Counsel to appear on the date fixed. The Counsel had failed to appear because of death of his nephew in road accident. In the said circumstances, the Hon''ble Apex Court found that ex parte judgment and decree was liable to be set aside on payment of Rs. 5000/- as costs to the other side. In the present case, the petitioner after filing written statement on 21.12.1987 did not participate in the proceedings and the suit was decreed ex parte on 17.1.1991. The two restoration applications filed by him were successively dismissed in default. Admittedly, the third restoration application was filed after 3-1/2 years and the petitioner was continuously appearing in the criminal case going on against him in the same district.

In the back-ground of above facts, no illegality appears to have been committed by the two courts below in rejecting the application. It is well settled that a litigant, who is not vigilant, is not entitled to be extended the benefit of Section 5 of the Limitation Act. The petitioner though made allegation that he went to Bombay where he fell seriously ill but no evidence, whatsoever, was filed in support of the said allegation. The two courts below appear to be right in recording finding that petitioner has been moving restoration application and getting it dismissed in default in order to linger on the proceedings.

In view of the above facts and circumstances, the writ petition being devoid of merits stands dismissed in limine.