IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 774 of 2009 Sardar Dharam Singh S/o Sardar Mukand Singh R/o 67/3, Tyagi Road, Dehradun (Since deceased) Represented by L. Rs. 1/1. Sri P.S. Malhotra S/o late Sardar Dharam Singh, R/o 67/3, Tyagi Road, Dehradun. 1/2. Sri J.S. Malhotra S/o late Sardar Dharam Singh R/o 67/3, Tyagi Road, Dehradun. 1/3. Sri D.S. Malhotra S/o late Sardar Dharam Singh, R/o 67/3, Tyagi Road, Dehradun. 2. Sukhdev Singh S/o Hoshiyar Singh, R/o 52, Luniya Mohalla, Dehradun. ……. Petitioners Versus 1. Life Insurance Corporation of India through Branch Manager, Life Insurance Corporation of India, Connaught Place, Dehradun, 2. Estate Officer, Life Insurance Corporation of India, 16/98, Mahtama Gandhi Road, Kanpur. …… Respondents …………………………. Sri Siddhartha Sah, learned counsel for the petitioners. Sri Alok Mahra, learned counsel for the respondent No.1. Date: June 25, 2009. Hon’ble B.S.Verma, J. Learned counsel for the respondent No.1 seeks permission to file short counter affidavit on behalf of respondent No.1 during the course of hearing before the Court. 2 2. Permission is granted. Short counter affidavit is taken on record. 3. Learned counsel for both the parties agreed to dispose of the petition at the motion hearing stage. 4. This petition has been filed by the petitioners seeking certiorari to quash the order dated 18.04.2009 passed by the Additional District Judge/Fast Track Court - II, Dehradun in Misc. Case No.15 of 2005 (arising out of restoration application No.36 of 2001) Sardar Dharam Singh versus Life Insurance Corporation of India and another. 5. The facts, giving rise to the dispute before this Court, in brief are that against the judgment and order dated 22.03.1995 an appeal was filed by the petitioner, bearing P.P. Appeal No. 43 of 1995. The said appeal was dismissed in default of the petitioner/appellant on 16.07.2001. The petitioner/appellant moved application under Order IX, Rule 4 C.P.C. for recall of the order dated 16.07.2001 and to restore the appeal to its original number. The said application was registered as Misc. Application No.36 of 2001. On the date fixed i.e. 17.03.2005 the appellant/applicant (petitioner herein) was not present to press the application and the restoration application (Misc. Application No.36/2001) was dismissed in default of the applicant. The petitioner /appellant again moved an application under Order IX Rule 9 C.P.C. and under Section 151 C.P.C. to recall the order dated 17.03.2005 and restore the application (Misc. Application No. 36 of 2001) for restoration of appeal No. 43 of 1995 to its original number. The said application under Order IX Rule 9 C.P.C. was registered as Misc. Case No.15 of 2005. The learned Additional District Judge invited objections from the Opp.party/respondents and after hearing both the parties at length rejected the application of the applicant/petitioner i.e. Misc. Case No. 15 of 2005 on 18.04.2009, which is impugned in this writ petition. 3 6. I have heard the learned counsel for the parties. The contention made on behalf of the petitioners is that petitioner No.2- Sukhdev Singh who was doing Pairvi in the case was not present due to his illness. The petitioners were not heard on the restoration application and were deprived from opportunity of hearing. The impugned order rejecting the application has caused substantial injustice to the petitioners. Therefore, if the order is to stand it would occasion the failure of justice and cause irreparable injury to the petitioners. 7. On the other hand, Sri Alok Mahra, Learned counsel for the respondent No.1 vehemently contended that the order dated 18.04.2009 was passed on merit after hearing both the parties at length. The petitioners are appearing or absenting before the court at their own sweet will and seeking restoration one after another when the matter is dismissed for non-prosecution. The sole aim of the petitioners is to delay and prolong the proceeding in appeal as they are enjoying the property in dispute being declared as unauthorized occupants. 8. I find force in the contention of the learned counsel for the petitioners. The restoration application was moved within time. It should have been decided on merit after giving opportunity to both the parties. In my opinion, ends of justice would be met if the impugned order dated 18.04.2009 is set aside and the petitioners are given opportunity of hearing on the restoration application. 9. With the aforesaid observation, the writ petition is allowed and impugned order dated 18.04.2009 is set aside. Restoration application (Misc. Application No. 15 of 2005) stands allowed. The Additional District Judge/Fast Track Court II, Dehradun shall decide the restoration application (Misc. Application No.36 of 4 2001) as well as substitution application after inviting objections from the respondents and after hearing both the parties on merit, by avoiding unnecessary adjournments to them, expeditiously as far as possible within a period of three months from the date of production of certified copy of this order. (Stay Application No.4127/2009 also stands disposed of accordingly.) (B.S. Verma, J.) 25.06.2009 P.Singh