- (1.) HEARD learned counsel for the parties. It appears that respondent's hand has been cut during the operation of threasher owned by Ram Rakshpal Singh, father of the petitioner, on account of his negligence. The respondent filed a suit against Ram Rakshpal Singh being suit no. 219 of 1993 for damages. The said suit has been decreed vide order dated 6.8.2002. Sri Ram Rakshpal Singh filed an application under Order 9 Rule 13 C.P.C. for recalling of the order on 1.7.2003 after ten months mainly on the ground that earlier the case was in the Court of Additional Chief Judicial Magistrate, Budaun which has been subsequently transferred to Civil Judge (Senior Division), Budaun and he could not get knowledge about the said transfer inasmuch as no notice has been issued by the transferred court which resulted in passing of an ex-parte order.
(2.) THE petitioner moved an application under Order 9 Rule 13 C.P.C. along with an application under Section 5 of the Limitation Act before the Civil Judge (Senior Division), Budaun. The Civil Judge (Senior Division), Budaun has rejected the application under Section 5 of the Limitation Act as well as the application under Order 9 Rule 13 C.P.C. The Civil Judge (Senior Division), Budaun has held that Sri Ram Rakshpal Singh came to know about the order on 22.1.2003 when the execution proceedings were initiated and a notice for Kurki has been sent. No explanation has been given for the delay between 22.1.2003 to 28.5.2003 for a period of four months. Against the order of the Civil Judge (Senior Division), Budaun, the petitioner filed revision no. 44 of 2005 which has been dismissed vide order dated 7.1.2010. Being aggrieved by the said order, the present revision is being filed. The writ petition has been got reported on 18.12.2012 and the same has been filed on 3.1.2013 beyond by time for more than two years. The laches has been explained in the following paragraphs of the writ petition: "Against the impugned order dated 7.4.2005 passed by the learned Civil Judge, Budaun in Misc. Case No. 67 of 2003 and order dated 7.1.2010 passed by the learned ADJ Court No. 11nd Budaun in Civil Revision No. 44 of 2005, the father of the petitioner late Ram Rakshpal Singh had approached to this Hon'ble Court and got reported Civil Misc. Writ Petition under Article 226/227 of the Constitution of India on 27.5.2010 vide reporting no. 72 through his counsel Sri R.P.S. Chauhan, Advocate.
(3.) AFTER getting report, the said writ petition was not immediately filed in the registry of this Hon'ble Court and in the evening of 27.5.2010 late Ram Rakshpal Singh went to his home at Budaun for arranging some necessary documents and informations about the case. He had requested to his counsel not to file his writ petition and argue the case till his comeback shortly on first working day after the summer vacation. After 27.10.2010 summer vacation was going started in this Hon'ble Court as such in case of filing the said writ petition in the registry it could be listed before the Court after summer vacation in the first week of July, 2010.;