- (1.) S. U. Khan, J. There are several substitution applications in respect of several deceased respondents and petitioner. Service upon all the proposed legal representatives is sufficient. However only the proposed legal representatives of respondents No. 3 and 5 have engaged the Counsel. Accordingly all the substitution applications are allowed. It has further been stated that the respondent No. 4 has died issueless leaving behind only legal representatives of respondents No. 3 and 5 as his heirs. Accordingly a note be made against respondent No. 4 to the effect that died and survived by legal representatives of respondent Nos. 3 and 5.
(2.) HEARD Sri S. S. Nigam learned Counsel for the petitioner, Sri S. C. Verma and Sri Nalin Kumar Sharma learned Counsel for legal representatives of respondents No. 3 and 5. It is unfortunate that reference under Consolidation of Holdings Act as it is stood in fifties has not yet been decided. The reference was registered as CO Reference No. 151 of 1959 on the file of Civil Judge, Muzaffar Nagar. It was decided ex parte on 26-8-1976. Thereafter restoration application was filed for setting aside the said ex parte order. The said restoration application was registered as case No. 47 of 1977 which was also dismissed in default on 17-2-1979. An application for recalling the said order was filed on 28-3-1979, supported by an affidavit of son of original petitioner stating therein that petitioner had met with an accident on 27-11-1978 and remained in Safdarganj Hospital Delhi for three days and thereafter he had got his treatment from a local hospital until 23-3-1979. According to the original petitioner, he enquired about his case on 25-3-1979 and got information on that very day that his restoration application had been dismissed in default. Alongwith application, affidavit of Raj Pal son of original petitioner was filed. Annexure 1 to the writ petition is the application of the petitioner, Annexure 2 to the writ petition is the affidavit of Raj Pal son of original petitioner and Annexure 3 to the writ petition is medical certificate issued by Dr. V. K. Gupta, P. H. C. Kandhla District Muzaffar Nagar. The restoration application filed on 28-3-1979 was registered as Case No. 56 of 1979. Civil Judge, Muzaffar Nagar rejected the application on 14-7-1979. The learned Civil Judge held that as original petitioner was discharged from Safdarganj hospital within 3 days hence his condition could not be said to be serious. In the medical certificate it is mentioned that the right fore-arm of original petitioner was amputated. Amputation of right fore-arms is naturally a very serious injury. Apart from physical disability it also gives severe mental shock to the person to realise that he will not be able to do normal physical work as his fore-arm is no more with him. In such situation a litigant may be excused for not taking due care of his cases for three or four months. Civil Judge also held that allegedly knowledge was acquired on 25-3- 1979 and restoration application was filed on 27-3-1979 hence delay of two days was unexplained. This approach is extremely technical and not at all warranted in restoration and delay condonation matters. Against the order of trial Court, petitioner filed Civil Revision No. 153 of 1979. IInd Additional District Judge, Muzaffar Nagar dismissed the revision on 20-8-1981, hence this writ petition. Agricultural property involved in this petition is about 55 Pucca bigha i. e. about 32 acres. Learned Counsel informs that earlier also matter was remanded thrice by lower revisional Court. The petitioner is continuing in possession on the basis of stay order passed in this writ petition for 25 years. Keeping in view all the above facts and circumstances of the case, I am of the opinion that it is in the interest of justice to allow the restoration applications and direct the trial Court to decide the matter on merit but on very heavy cost.
(3.) ACCORDINGLY writ petition is allowed. Impugned orders are set- aside. Dismissal order dated 17-2-1979 is also set-aside. Earlier ex parte order dated 26-8-1976 is also set-aide. Ex-parte orders are set-aside on payment of Rs. 2 lakhs cost. Cost is not penal in nature but it is compensatory. Cost shall be paid through draft drawn in favour of Jagtar S/o late Balwant as desired by learned Counsel for legal representatives of respondent Nos. 3 and 5. Payment of the cost of Rs. 2 Lakhs will be for the benefit of the legal representatives of respondent Nos. 3 and 5 who have engaged Counsel in this Court. Draft shall be paid to Jagtar in Court before the Civil Judge and the said fact shall be recorded by the Civil Judge in the order sheet. Both the parties are directed to appear before the Civil Judge on 4-1-2007. If the amount is not paid on 4-1-2007 then this order shall stand automatically vacated and writ petition shall stand dismissed.;