- (1.) HEARD learned counsel for both the parties.
(2.) THIS writ petition is directed against orders passed by the courts below rejecting petitioners' restoration application under Order IX Rule 13 C.P.C. First order was passed on 16.10.2004 by I Additional Civil Judge (Senior Division), Court No.20, Lucknow in Misc. Case No. 29-C of 2000 rejecting petitioners' restoration application through which ex-parte decree dated 5.7.2000 passed in Original Suit No.51 of 1982 was sought to be set aside. Against the said order petitioners filed Misc. Civil Appeal No.202 of 2004 which was dismissed by Additional District Judge, Court No.12, Lucknow on 12.7.2006 hence this writ petition. Predecessor in interest of the petitioners and proforma respondent no.4 was contesting defendant no.1 in the suit. He died on 17.11.1985. Application seeking substitution of the three petitioners and proforma respondent no.4 � Smt. Nasreen Fatma was filed on 12.2.1986. Notices were issued several times. Service was also affected through publication in newspaper Lucknow Mail dated 13.1.1997. Ultimately on 17.2.1997 substitution application was allowed. The said order and subsequent orders have been quoted in paragraph 23 onward of the counter affidavit. On 24.2.1997 the trial court passed the order for issuance of summons to newly added defendants nos. 1/1 to 1/4 fixing 2.4.1997 for filing written statement and 9.4.1997 for framing issues. Thereafter on 29.4.1997 it was noted that one of the heirs i.e. respondent no.4 in this writ petition was reported to be residing at America and rest of the heirs had not been served personally and it was further reported that they were avoiding the service. Thereafter it was directed that plaintiff should take fresh steps for service which was accordingly done. Thereafter on 27.7.1998 it was ordered by the trial court that the suit must proceed ex-parte as the registered envelops had not returned back even though one month had expired and 31.8.1998 was fixed for ex-parte evidence.
(3.) THEREAFTER on 22.12.1998 application was filed by the petitioners under Order -IX Rule 7 C.P.C. for recalling the order dated 27.7.1998. The said application was rejected on 24.4.2000. Thereafter ex- parte decree was passed on 5.7.2000. Restoration application under Order-IX Rule 13 C.P.C. was filed on 25.7.2000 which was rejected by the impugned order and appeal filed against the same was also dismissed as stated above. Learned counsel for the plaintiff-respondent has argued that as against order dated 24.4.2000 rejecting the application of the petitioners under Order-IX Rule 7 C.P.C. no revision etc was filed hence subsequent restoration application was not maintainable. This is not correct legal position. Supreme Court in Arjun Singh vs. Mahendra Kumar A.I.R. 1964 S.C. 993 has held that "an order rejecting the application under Order-IX Rule 7 is not of the kind which can operate as res-judicate so as to bar the hearing on the merits of an application under Order IX Rule 13". (Para-16).;