- (1.) Heard learned Counsel for the parties. Respondent No. 1, Union Bank of India, Kasba Zamania, District Ghazipur branch instituted a suit for recovery of Rs. 2,78,883.75 alongwith interest against the petitioner who was borrower and respondent No. 2, Sri Hriday Narain Lal, the guarantor. It was stated in the plaint that petitioner had taken loan of ? 1,50,000/- and the amount claimed in the plaint was unpaid part of the principal amount alongwith interest. The suit was registered as O.S. No. 79 of 1990. It was decreed ex parte on 28.8.1998. On the very next date, i.e., on 29.8.1998 petitioner filed application for restoration, which was registered as Misc. Case No. 146 of 1998. The restoration application was rejected by Additional Civil Judge (Senior Division), Ghazipur on 15.5.2001. Against the said order, petitioner filed Civil Misc. Appeal No. 11 of 2001, which was dismissed by II A.D.J., Ghazipur on 4.10.2005 hence this writ petition. Both the Courts below rejected the restoration application on the ground that defendant was delaying the disposal of the suit and had admitted in his written statement that he had taken the loan. It was also held that written statement itself was filed after eight years i.e., in the year 1998. Courts below also noticed that earlier an order had been passed directing the suit to proceed ex parte on 21.10.1992, however the said order was recalled on 16.2.1993 hence it proved that defendant was trying to delay the proceedings.
(2.) The petitioner filed affidavit in support of the restoration application which remained uncontroverted.
(3.) In my opinion, as restoration application had been filed on the very next date and as the affidavit filed in support thereof remained uncontroverted hence restoration application should have been allowed. Moreover, the earlier order of proceeding ex parte, which had already been set aside five years before could not be a ground to reject the restoration application. The fact that written statement was filed late also could not be a ground for the said purpose. As far as the question of admitting the loan is concerned while allowing the restoration application Trial Court could impose condition.;