M.Katju - (1.) -Respondent No. 4 filed suit No. 212 of 1975 against the petitioner and others for permanent injunction restraining the defendants from interfering in plaintiff's possession over the property in dispute. In this suit Vijay Sharker Tiwari who was a minor at that time, was impleaded as a party through his mother Smt. Umrawati Devi as his guardian It is submitted that Vijay Shankar Tiwari was represented through his own mother as guardian. This suit was subsequently compromised between the parties. The compromise decree dated 29-4-1978 is Annexure 1 to this Writ Petition.
(2.) AFTER a lapse of about nine years an application under Order 9 Rule 13 CPC was filed on 20-2-1987 by Vijay Shanker Tiwari with an application under Section 5 of the Limitation Act and an affidavit. True copy of the said application is Annexure '2" to this petition. True copies of the affidavit and application under Section 5, are Annexures 3 and 4 to this petition. A counter affidavit was filed by the petitioner against this restoration application and affidavit. True copy of the counter affidavit dated 23-12-86 is Annexure 5 to this petition. The Munsif, Ghazipur allow the restoration application on 23-9-1989 vide Annexure 6. Against this order the petitioner filed revision before the District Judge, which was dismissed by the impugned order dated 22-7-1991 (Annexure 8 to the petition). Aggrieved, the petitioner has filed this writ petition. Counter affidavit and rejoinder affidavit have been exchanged in this case and I am disposing of this writ petition finally.
(3.) LEARNED counsel for the petitioner has urged that there is a clear finding in para 12 of the impugned order dated 22-7-91 that Smt. Umrawati Devi, mother and natural guardian of the minor Vijai Shanker Tiwari received the summons on 23-10-75. As such the restoration application was wrongly allowed It appears that the suit was dismissed on 27-8-76 but the plaintiff filed a restoration application on 14-9-76 and vide order dated 7-12-76 the suit was restored. In the restoration case also Smt Umrawati Devi had appeared along with defendant by filing Vakalatnama which is 19-C on the record. In para 18 of the impugned order it has been held that after the dismissal of the suit the defendant no 3 was not served. In my opinion it was not necessary to serve Smt Umrawati Devi again since she had already been served on 23-10-75 and she had appeared in the restoration case It is stated in the impugned order that the Vakalatnama shows that Smt. Unrawatj Devi is the daughter of Vijai Shanker Tiwari and not his mother. From this fact an inference has been drawn by the respondent no 1 that Vijai Shanker Tiwari and his mother have not been served In my opinion such an inference is wholly arbitrary. It is evident that Smt Umrawati Devi has been wrongly mentioned as the daughter of Vijai Shanker Tiwari by an inadvertant and clerical mistake. It may be noticed that according to the own case of Vijai Shanker Tiwari he became a major in 1981. The restoration application was filed in 1987 and there is no good ground for this ;great delay. Accordingly the impugned order dated 22 7 91 of the respondent no. 1 as well as the order dated 23-9-1989 of the Munsif, Ghazipur are arbitrary and illegal and are quashed.;