- (1.) Heard Sri M.A. Qadeer learned Senior Counsel assisted by Sri Shamim Ahmad learned Counsel for the petitioner. The cause list of old cases has been revised. None appeared on behalf of the respondent Nos. 3 and 4 however counter-affidavit is available on record. The petitioner was a defendant in Suit No. 67 of 1987 pending in the Court of First Additional Civil Judge, Kanpur Dehat, Kanpur whereas the respondent Nos. 3 and 4 were the plaintiffs. According to Sri Qadeer the plaintiff respondent had filed a suit for injunction with respect to the land in question against the defendant petitioner wherein an order dated 12.11.1992 was passed by the Trial Court to proceed ex parte against the defendants. The petitioner alleges to have filed an application for recall of the order along with an application under section 5 of the Limitation Act which was rejected by the Trial Court by the order dated 12.4.1993 and the appeal there against being Misc. Appeal No. 15 of 1995 has also been dismissed by the judgment and order dated 21.1.1995. The petitioner is aggrieved against the said orders.
(2.) Sri Qadeer has submitted that while considering the application under section 5 of the Limitation Act the Trial Court has found that the petitioner could not sufficiently explain the delay in filing the application on a day to day basis. It has disbelieved the two medical certificates filed by the petitioner to show that he was ill and has therefore rejected the application under section 5 of the Limitation Act as also the application to set aside the ex parte order. He states that the petitioner had given a clear explanation that he could not appear on 12.11.1992 because he was arrested on 7.11.1992 and could get bail only on 25.11.1992 whereafter he fell ill and after recovering from his illness he approached his lawyer who after inspection of the file, filed restoration application alongwith condonation of delay application on 31.7.1992.
(3.) Sri Qadeer has also submitted that the delay of two months and 20 days in filing the application for recall of the ex parte decree ought to have been considered liberally more particularly when on the date when the order to proceed ex parte was passed i.e., 12.11.1992 the petitioner was in custody and was prevented from appearing in Court. He states that his non appearance was not a default of the petitioner but having been arrested he was prevented from appearing in Court. Under such circumstances it is submitted that if sufficient explanation has been given for non appearance on 12.11.1992 then in order that the dispute between the petitioner defendant and the plaintiff respondents be decided on merits the Court ought to have taken a liberal approach.;