Shabana Islam and Another vs Additional District Judge Lucknow and Others

Rajiv Sharma, J.—List is being revised.

Neither learned Counsel for the petitioners is present nor there is any request for passing over or adjournment of the case.

Heard Sri P.S. Mehra, learned Counsel for the opposite parties No. 3 and learned Standing Counsel for opposite parties No. 1 and 2.

By means of the instant writ petition, the petitioners have assailed the judgment and order dated 26.3.2007 passed by the Additional District Judge, Court No. 3, Lucknow in Civil Revision No. 155 of 2005, whereby the petitioners'' revision filed against the judgment and order dated 21.3.2005 passed in Regular Suit No. 78 of 1991, has been dismissed.

Plaintiff-opposite party No. 4-Smt. Anjumand Bano has filed a suit for declaration and mandatory injunction, which was registered as Regular Suit No. 78 of 1992, against defendants-petitioners. Notice was issued and in reply thereof, the petitioners have put in appearance. When petitioners could not appear in suit on 16.9.2004, trial Court has passed the order to proceed ex parte against the defendants including the petitioners and framed issued. Thereafter, the petitioner No. 2 moved an application under Order IX Rule 7 of the CPC to recall the order dated 16.9.2004. The Civil Judge Malihabad (Senior Division), Lucknow, vide order dated 21.3.2005, rejected the petitioners'' application. Feeling aggrieved, the petitioners preferred a revision, which was registered as Civil Revision No. 155 of 2005. The revisional Court, vide order dated 26.3.2007, dismissed the revision. Hence the instant writ petition.

This Court, while entertaining the instant writ petition, vide order dated 12.7.2007, stayed the further proceedings in Regular Suit No. 78 of 1991.

Sri P.S. Mehra, learned Counsel for the opposite parties No. 3 submits that he has no objection in case the application, which has been preferred under Order IX Rule 7 for recalling the order dated 16.9.2004, be allowed but the trial Court may be directed to expedite the hearing of Regular Suit No. 78 of 1992, which has been filed in the year 1992.

In view of the above, without entering into the merits of the case, as the opposite party No. 3 has consented and has no objection in allowing application u/s IX Rule 7, the said application is allowed. The orders dated 16.9.2004 and 26.3.2007 are hereby set-aside.

As Regular Suit No. 78 of 1992 is lingering since 1992, trial Court is directed to proceed day-to-day basis in Regular Suit No. 78 of 1992 and decide the same, in accordance with law, after affording opportunity of hearing to all the parties, expeditiously, say, by 30.3.2011.

The writ petition is allowed.