SANGEETA CHANDRA,J. - (1.)Heard the learned counsel for the parties and perused the record.
(2.)This petition has been filed challenging the order dtd. 26/2/2021 passed by the learned Additional District Judge, Court No.4, Barabanki, on Application No.Ga-8 filed by the petitioner objecting to the maintainability of the Miscellaneous Civil Appeal No.57/2018 (Pitamber @ Premdas Vs. Abbas).
(3.)It has been submitted by the learned counsel for the petitioner Shri Suraj Narain Srivastava, that the opposite party no.1 through his next friend i.e. his wife filed a Suit No.69/1997 (Pitamber @ Premdas Vs. Abbas) on 3/2/1997 before the learned Civil Judge (Junior Division), Barabanki, praying for permanent injunction against the petitioner and for cancellation of sale deed dtd. 25/7/1996 executed in favour of the petitioner. It was submitted that he was of unsound mind when he executed the sale deed on 25/7/1996. The Suit No.69/1997 was dismissed for want of prosecution on 22/5/2008 by the learned Trial Court. The Opposite party no.1 filed an application under Order 9 Rule 9 read with Sec. 151 of CPC and Sec. 5 of the Limitation Act on 2/8/2008 which was registered as Miscellaneous Case No.41/2008. The plaintiff prayed for recall of order dtd. 22/5/2008 on the ground that when the case was fixed on 22/5/2008 for disposal of Application No. Ka-93, the Opposite party no.1 felt ill as a result whereof his wife Savitri who was doing pairvi could not reach in time to the Court. When the opposite party no.1 felt better his wife Savitri Devi contacted the counsel for the plaintiff on 1/8/2008 and came to know of the dismissal of the Suit for non-prosecution.