- (1.) Heard Sri Pankaj Agarwal, learned counsel for the petitioner and Sri Dhiraj Srivastava learned counsel for respondent no.1 / 2 Anil Kumar.
(2.) In O.S. no.256 of 1982 Ram Swaroop since deceased and survived by legal representatives Vs. Liaqat Ali and others on 30.9.1983 an order was passed directing defendant no.3 petitioner Haji Mohammad Usman to give his specimen thumb impression so that it could be compared with his thumb impression on his vakalatnama filed in Execution case no.2 of 1981. The relief claimed in the suit is for cancellation of decree passed in Original Suit No.344 of 1980 on alleged compromise. Plaintiff was asserting that on the said vakalatnama there was thumb impression of defendant no.3 but defendant no.3 was denying that. It is very strange that for 30 years defendant no.3 did not give his specimen thumb impression. However, for that fault alone suit could not be directed to proceed ex parte. Learned counsel for the petitioner states that due to refusal of defendant no.3 to give his specimen thumb impression the court below could hold that the signatures on the disputed vakalatnama were of defendant no.3 but suit could not be directed to proceed ex parte.
(3.) The first thing to be noticed in this writ petition is the description of the petitioner which is as follows: Haji Usman Mohammad, Care of Babu Miyan through Power of attorney holder Gul Nawaj Ali. The description is quite unique. Vakalatnama is signed by Gul Nawaj Ali and affidavit filed in support of writ petition is also of Gul Nawaj. From the perusal of the impugned orders it is clear that whereabouts of petitioner Haji Mohammad Usman are not known. Power of attorney is alleged to be of 1999. It was filed after eleven years i.e. on 14.7.2010. On 13.7.2011 the trial court directed the suit to proceed ex-parte against the petitioner Haji Mohammad Usman defendant no.3 in the suit. On the same date his learned counsel withdrew his vakalatnama. Thereafter petitioner through Gul Namaz filed application on 20.2.2013 for comparison of signatures of the plaintiff. That application was rejected on 4.3.2013 noticing that the application was utterly belated and case was already proceeding ex-parte against defendant no.3. Thereafter another application was filed by petitioner through Gul Namaz on 6.3.2013 for recalling the order dated 13.7.2011. That application was rejected through the impugned order dated 6.3.2013 passed by Civil Judge (Senior Division), Saharanpur. Against the said order petitioner filed revision which was dismissed in limine by District Judge, Saharanpur on 1.4.2013 hence this writ petition.;