Krishna Murari, J. - (1.) HEARD learned Counsel for the petitioner and Sri Chandrajeet Yadav for the respondent.
(2.) 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 v. R.K. Raizada and Ors. : AIR 2000 SC 1221.
(3.) I have considered the argument advanced by the learned Counsel for the petitioner and perused the record.;