S.P.PANDEY - (1.) THIS is a second appeal preferred against the judgment and decree dated 27-10-1999 passed by the learned Additional Commissioner, Moradabad Division, Moradabad, arising out of an order dated 9-7-1999 passed on the restoration application moved against the judgment and decree dated 31-1-1995 passed by the learned trial Court in a suit under Section 176 of UPZA and LR Act (hereinafter referred to as the Act).
(2.) BRIEF and relevant facts of the case are that the plaintiffs, Mohammad Islam and Smt. Nafisa Begum wife of Haji Mohammad Islam instituted a suit under Section 176 of the Act against the defendants, Mohammad Yusuf and others for division of their holding amongst the parties concerned in respect of the land as detailed at the foot of the plaint. The learned trial Court by means of its order dated 24-10-1994 proceeded ex parte against the defendants 1 to 7 as one respondent on behalf of the aforesaid defendants. On 7-11-94, the learned trial Court passed the preliminary decree declaring the shares of the parties concerned and ordered lots to be filed by the Lekhpal concerned. On 31-1-1995, final decree was passed by the learned trial Court and the lots filed by the Lekhpal were confirmed. A restoration application was moved on 14-12-1998 on behalf of the applicants/defendants 1 to 7 for setting aside the aforesaid order dated 24-10-1994 preliminary decree dated 7-11-1994 and the final decree dated 31-1-1995 passed by the learned trial Court. The learned trial Court by means of its order dated 9-7-1999 rejected this restoration application. Aggrieved by this order dated 9-7-1999 passed on the restoration application by the learned trial Court, an appeal was preferred. The learned Additional Commissioner upheld the aforesaid order passed by the learned trial Court and dismissed the appeal. Hence this second appeal. I have heard the learned Counsel for the parties and have also perused the record on file. For the appellant it was contended that the judgment and decree dated 31-1-1995 was passed ex parte without hearing and affording any opportunity for adjudicating evidence to the appellant; that no notice or summons have been served on the appellant and the substituted service of summon was not in accordance with law; that the restoration application filed by the appellant was wrongly rejected by the learned trial Court without any proper appreciation of papers on file; that the learned lower appellate Court has also field to appreciate the grounds of the restoration application and peruse the relevant and material papers on file; that the orders passed by the learned Courts below are wholly illegal arbitrary and mala fide and are liable to be set aside; that the appellant lived in Bombay and the publication was not properly effected on the defendants-appellant; that the aforesaid restoration application was moved on behalf of the defendant-appellant when they came to know about the aforesaid decrees passed against them and as such the aforesaid orders passed by the learned Courts below deserve to be set aside. In reply, the learned Counsel for the respondent submitted that the learned trial Court's aforesaid ex parte orders, passed against the defendant-appellants are quite in consonance with the provisions of law as despite sufficient service the defendant- appellants miserably failed to present themselves before the learned trial Court; that Mohammad Ashrin son of Mohammad Yasin was appointed as Attorney on behalf of the defendants 1 to 3 and this power of attorney was executed on 23-2-1991 in Bombay and the person in whose favour the power of attorney was executed lived in the village concerned and as such the service on the defendants-appellants is quite sufficient and the aforesaid orders passed by the learned Courts below must be maintained.
(3.) I have closely and carefully considered the contentions raised by the learned Counsel for the parties and also gone through the relevant records on file. From a bare perusal of the relevant records it is abundantly clear that the defendants 1 to 7 failed to appear before the learned trial Court despite due and sufficient notice and consequently it has rightly passed an order on 24-10-1994 for proceeding ex parte against them. Later on the preliminary decree dated 7-11-1994 and final decree dated 31-1-1995 were passed ex parte. Likewise, the aforesaid restoration application has been rightly rejected as time barred since after the lapse of about 4 years the defendants-appellants could not appear before the Court concerned. It is quite impossible on the part of the defendant-appellants that they could not have any knowledge or notice about the suit proceeding ex parte against them. The aforesaid power of attorney dated 23-2-1991 clearly shows that it has been executed on behalf of Mohammadi Begum widow of Mohammad Ynis and 8 others in favour of Ashrin Mohammad Yasin resident of Moradabad. Out of the aforesaid executants, Mohammad Yusuf, Mohammad Shoaib and Mohammad Suhail are the defendant-appellants and as such the aforesaid three persons must have full knowledge and notice of the aforesaid suit. Owing to utter inaction and negligence, if the defendant- appellants failed to appear before the learned trial Court despite sufficient and due notice, the aforesaid orders dated 9-7-1999 passed by the learned trial Court on the restoration application cannot be upset at this second appellate stage.;