R.S. Dhavan, J. - (1.) ON 26th May, 1990, this Court passed the following order: This matter has been nominated by Hon'ble the Chief Justice to this Court. By the time it was placed before the Court at 4.30 p.m. the court was engaged in other proceedings. Regard being had to the fact that it is last working day before the summer vacations and the Hon'ble the Chief Justice has made nomination thus upon request of the counsel this matter will be put up at 11 a.m. in Chambers tomorrow. These proceedings have been taken in pursuance of the nomination of the Hon'ble the Chief Justice and references to the orders passed yesterday as above. The matter has been taken up at the request of the counsel for the parties. A certified copy of the order which may be given will be in continuation of the order of 26th May, 1990.
(2.) THE Court has perused the record of the Civil Revision as presented as also the application supported by an affidavit, counter affidavit and the rejoinder affidavit. In this matter the prayer is that the order of the Civil Judge, Gorakhpur dated 15th March, 1990 in original suit No. 665 of 1989; Sardar Boota Singh and others v. Gama and others, be stayed. Caveat has been entered on behalf of the opposite parties by Mr. Tarun Agarwal, Advocate, whose brief is being held by Mr. Sharad Verma, Advocate. The matter has been heard and is being decided finally.
(3.) THE contention of the learned counsel for the applicants is that the order of 15th March, 1990 impugned in the civil revision is illegal. The contention further is that the revisionists, as defendants, have right and title over the land in question and thus the order of demolition passed by the Civil Judge, Gorakhpur cannot remain and ought to be interfered with by High Court. For this purpose the court has been taken through the entire record of the matter as has been presented. The record as has been presented by the defendant -revisionists is not the record of the original suit. There is not more to it than is presented by the defendant Revisionists. It is contended that the injunction which had been granted initially on 29th September, 1989 was without any reason. This is not so. What has been placed before the court in paragraph 4 of the stay application of the defendants is only an extract of an order. The complete order is in the order sheet which has been appended by the plaintiff -caveator before this Court. The reasons are in the order of the learned Civil Judge who has noticed prima facie attributes of possession from revenue records. Learned Civil Judge granted the injunction on 29.9.1989. Not only this the trial court posted the matter to 20th October, 1989 giving an opportunity to the defendants (a) to object to the interim order; (b) file their defence. The defendants chose not to file their defence whatsoever be the reasons and until today have not done so. Thus, it cannot be pleaded as an objection the opportunity to object to the stay order had not been granted by the learned Civil Judge. In between the defendants filed a Civil Revision before this District Judge, Gorakhpur. This ultimately was dismissed by the District Judge, Gorakhpur as not being maintainable in law. This is one aspect of the matter. The matter relating to the grant or continuation of the injunction again came up before the learned Civil Judge. This time the complaint of the plaintiffs was that the injunction of 29 September, 1989 is being breached and constructions are being put on the land in question. The learned Civil Judge appointed an Advocate Commissioner. The report was received by the learned Civil Judge that there had been recent building activity and some of the huts which had been set up were 'built be seen with wet mud and the area from which it was taken was recently dug. Even while that order was being passed by the learned Civil Judge counsel for the defendants chose not to file the written statement. On record even before the High Court the plaintiffs assert in paragraph 11 that the written statement has not been filed before the trial court. As of date reply to this paragraph 11 has not been given. In fact it has been accepted. Defendant's contention that they were under the impression that they had filed the objections and written statement but only upon being reminded that they had not done so that they are now conscious to find that they had not filed the written statement. Thus, not filing objection and written statement both, is now a matter of fact and not a matter in issue. A part which will not take its defence despite repeated opportunities being granted will have to face the consequences of such presumptions which the court may draw. One of the presumptions is the proposition that a party is not inclined to take a defence as of date. The defendants have to thank themselves for being put in that position. These are matters of record.;