Case: MOHD. SAHID  Vs. RAZIYA KHANAM (DIED) THR. LRS

to 09.05.2013 though may not reflect the averments in the application for condonation of delay, in our view, does not affect the correctness of the impugned order. 15. The statement of the appellants that they got knowledge about the judgment of the trial court in Suit No.591 of 1979 dated 10.05.2012 for the first time on 06.05.2013 is incorrect. As pointed out by the First Appellate court as well as by the High Court, certified copy of the order sheet dated 11.10.2011 and 14.10.2011 in Suit No.591 of 1979 shows that on 11.10.2011, parties were present in the trial court and the attention of the court was drawn by the respondents-plaintiffs regarding the order passed in Writ Petition(C) No.19550 of 1985 (20.02.2001). On 11.10.2011, the trial court heard the parties for deciding the issues No.2 and 3 and the order sheet indicates the presence of the parties as seen from the following:-"Order dated 11.10.2011 ………… Disposal of Issue Nos.2 and 3 Today the parties made the prayer for deciding the issues No.2 and 3 after hearing the same. On the prayer of the parties, both parties are heard on the issues No.2 and 3 with respect to valuation and court fee paid and the record is perused. In this case the issue No.2 was framed – ?Whether valuation of this suit is shown lesser?? and the issue No.3 was framed – ?Whether the court fee paid by plaintiff is deficient?? No such fact was put up by the parties so that it could appear that valuation of the suit was not fixed correctly and the court fee paid was deficient. So in view of the aforesaid facts and circumstances the issues No.2 and 3 are decided in negative. The record be put up for recording of the evidence by the plaintiff on 14.10.2011.?Thereafter, the case was put up for recording of evidence by the respondent-plaintiff on 14.10.2011. As per the order sheet dated 14.10.2011, the case was called out and the parties were present and the case was again adjourned to 18.10.2011. On 18.10.2011, the affidavit of the respondent-plaintiff was filed and thereafter, in spite of several opportunities, the appellants-defendants did not appear and the suit was decreed ex-parte on 10.05.2012. In the said judgment dated 10.05.2012, the trial court has recorded that in spite of opportunities, the appellants-defendants did not appear as seen from the following:-?In the present case, the defendants have filed their objection at 17 A1 but they had remained absent at the time of adducing evidence. Therefore, on 09.11.2011, their opportunity of adducing evidence was closed and they were declared ex-parte and ex-parte proceeding continued. ……….. In support of their pleadings, the plaintiffs had examined PW-1 Seraj Ahmmed, PW-2 Firoz Alam and PW-3 Salauddin as witnesses. The evidences on affidavit of these witnesses have been placed on records as the Document No.120A2, 128A2 and 129A2. The defendants did not remain present for the cross- examination of the aforementioned witnesses………?16. After referring to the order sheets dated 11.10.2011 and 18.10.2011 and the subsequent hearings in the Suit No.591 of 1979, the First Appellate Court as well as the High Court rightly recorded concurrent findings that the appellants had full knowledge about the proceedings of the original Suit No.591 of 1979 and also about the vacation of stay order passed in Writ Petition(C) No.19550 of 1985. The High Court has rightly observed that the appellants-defendants have not come out with the correct facts. 17. The averments in the application that the appellants got knowledge about the judgment in Suit No.591 of 1979 dated 10.05.2012 only on 06.05.2013 through a constable is incorrect. On behalf of the respondents, it is stated that in the proceedings before the Sub-Divisional Magistrate, the appellants filed the application on 23.11.2012 (Objection Paper No.23C2) wherein the judgment dated 10.05.2012 of the civil court was mentioned and it was even averred that the said judgment was passed wrongly. It is thus clear that the appellants had knowledge about the judgment and decree in Suit No.591 of 1979 even on 23.11.2012. While so, the appellants- defendants have filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013 at Tehsil Ghosi when constable of the Police Station gave them the information. The High Court rightly rejected the contention of the appellants that they came to know about the judgment dated 10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a constable of the Police Station in Tehsil Ghosi, District Mau when he had gone there to Pairvi in another case. 18. It is also pertinent to note that in Suit No.591 of the year 1979, the appellants have not filed the written statement in spite of ample opportunities given and earlier the suit was decreed ex-parte against them on 16.04.1981. The appellants filed appeal in CA No.395 of 1981 and it was dismissed for default and the same was restored on 14.11.1983. By order dated 29.11.1985, CA No.395 of 1981 was allowed and the ex-parte decree dated 16.04.1981 was set aside and the matter was remanded back for decision on merits afresh with condition of depositing cost of Rs.50/-. Of course, Writ Petition(C) No.19550 of 1985 was filed challenging the same; the suit being of the year 1979 and earlier being set ex-parte and the matter having been remitted at the instance of the appellants, the appellants ought to have been vigilant in pursuing the matter. 19. The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the Original Suit No.591 of 1979 and also about the disposal of the Writ Petition(C) No.19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]17. The averments in the application that the appellants got knowledge about the judgment in Suit No.591 of 1979 dated 10.05.2012 only on 06.05.2013 through a constable is incorrect. On behalf of the respondents, it is stated that in the proceedings before theMagistrate, the appellants filed the application on 23.11.2012 (Objection Paper No.23C2) wherein the judgment dated 10.05.2012 of the civil court was mentioned and it was even averred that the said judgment was passed wrongly. It is thus clear that the appellants had knowledge about the judgment and decree in Suit No.591 of 1979 even on 23.11.2012. While so, the appellantsdefendants have filed application with incorrect averments that they got knowledge about the judgment and decree only on 06.05.2013 at Tehsil Ghosi when constable of the Police Station gave them the information. The High Court rightly rejected the contention of the appellants that they came to know about the judgment dated 10.05.2012 in Suit No.591 of 1979 only on 06.05.2013 through a constable of the Police Station in Tehsil Ghosi, District Mau when he had gone there to Pairvi in another case.It is also pertinent to note that in Suit No.591 of the year 1979, the appellants have not filed the written statement in spite of ample opportunities given and earlier the suit was decreedagainst them on 16.04.1981. The appellants filed appeal in CA No.395 of 1981 and it was dismissed for default and the same was restored on 14.11.1983. By order dated 29.11.1985, CA No.395 of 1981 was allowed and thedecree dated 16.04.1981 was set aside and the matter was remanded back for decision on merits afresh with condition of depositing cost of Rs.Of course, Writ Petition(C) No.19550 of 1985 was filed challenging the same; the suit being of the year 1979 and earlier being setand the matter having been remitted at the instance of the appellants, the appellants ought to have been vigilant in pursuing the matter.The order sheet and other materials placed on record clearly show that the appellants had full knowledge about the proceedings of the Original Suit No.591 of 1979 and also about the disposal of the Writ Petition(C) No.19550 of 1985 and the appellants have filed application for condonation of delay with incorrect facts. Both the First Appellate Court and the High Court recorded concurrent findings that the appellants have filed the application for condonation of delay with incorrect facts and were negligent in pursuing the matter and rightly refused to condone the delay.