S.N.Srivastava, J. - (1.) -This writ petition is directed against the order dated 3.9.1993, passed by Ist Additional District Judge, Muzaffarnagar, dismissing the application 3C to recall the order dated 10.7.1992 dismissing the Misc. Case No. 15 of 1992 in default.
(2.) JAI Chand filed a Suit No. 587 of 1987 in the Court of Munsif, Muzaffarnagar for permanent injunction. The suit was decreed on 11.5.1980. Jagdish Prasad and others filed Civil Appeal No. 80 of 1984. This appeal was dismissed in default on 16.10.1985. A restoration application for restoring the appeal was rejected in Misc. Case No. 18 of 1988. During the pendency of that application, Jagdish Prasad died and his heirs filed an application for substitution on 6.3.1990 which was allowed but some of the heirs of Jagdish Prasad withdrew the restoration application in Case No. 18 of 1988 on 31.1.1992. The petitioner's application for impleadment was allowed. The petitioner filed restoration application on 6.4.1992 for setting aside the ex parte order dated 16.10.1985 for restoration of the appeal. This application was registered at Misc. Case No. 15 of 1992. The petitioner could not appear on 10.7.1992, i.e., date fixed in the Misc. Case No. 15 of 1992. The application was dismissed in default on 10.7.1992. He moved an application on 10.8.1992 for recalling the said order dated 10.7.1992. The ground mentioned in the application was that the applicant came to the Court late. On 10.7.1992, on enquiry, the peon of the Court informed that steps were required to be taken. Hence he entrusted his counsel to take steps. This application is supported by an affidavit. The appellate court dismissed the restoration application on 3.9.1993 and refused to restore the Misc. Case No. 15 of 1992. Though no counter-affidavit was filed by the opposite parties. Affidavit filed by the petitioner was un-controverted. In the writ petition also notices were issued. Opposite Parties are represented through Sri V. S. Chaudhary learned counsel. Inspite of the fact that Sri V. S. Chaudhary, learned counsel for the opposite party has filed vakalatnama on 25.1.1994 but no counter-affidavit was filed.
(3.) SRI K. K. Sangloo, learned counsel for the petitioner, urged that application for restoration was supported by uncontroverted affidavit. The opposite party did not file any counter-affidavit denying the facts stated in the affidavit. It was not open to the appellate court to ignore uncontroverted affidavit and dismiss the restoration application. Sri V. S. Chaudhary did not controvert the fact that no counter-affidavit was filed either before appellate court or before the High Court, but says that the order passed by appellate court rejecting restoration application is liable to maintained.;