- (1.) S. N. Srivastava, J. This application filed by Satya Pal and Smt. Premwati, wife of Satyapal, arrayed as respondents 2 and 3 in the Second Appeal seeks recall of judgment dated 3-11-2004 rendered by this Court whereby second appeal was allowed- decreeing the suit accordingly.
(2.) THIS application presented on 30-3-2005 with an accompanying affidavit encapsulated a prayer for condonation of delay in filing recall application. The grounds enumerated by the respondents there in the application are that the second appeal was dismissed as withdrawn on 9-4-2003. Consequent upon this application for recall of order dated 9-4-2003, notices were issued. However, the said application came to be dismissed for default on 8-10-2004. Thereafter, a fresh application for recall of order was moved by the applicants. THIS application culminated in being allowed on 7-4-2004 and as a sequel, the appeal was restored to its number. It would appear that notices were issued thrice and in the ultimate analysis, impugned judgment was passed. Paragraph 12 of the affidavit filed in support of Recall Application contains averments to the effect that respondents had not received any notice for final hearing of appeal nor were they ever apprised by their Counsel about progress in the said appeal; that the respondent Satya Pal had already sold off the property through sale deed dated 22-11-1999 that he came to know on 7-3- 2005 through one Luqman Ahmad about decree having been passed by the High Court when he happened to be in civil Courts. Paragraph 18 of the affidavit contains averment to the effect that the respondents had engaged Ashfaq Ahmad Ansari, Advocate to represent them in the case but at the same time, it is also averred that the aforesaid Advocate did not file any Vakalatnama on their behalf nor did he appear before the Court and hence the order was passed without any opportunity of hearing to him. It would appear that the aforesaid application for recall of the order by the respondents has been presented through Syed Wajid Ali Advocate who, it would seem, was not engaged to represent them till the stage of final decree. It is worthy of notice here that applicants were, till then, being represented through his Counsel namely, Sri V. K. Srivastava, who had filed Vakalatnama on 12-7-90. It would further appear from a scrutiny of record that on 16-9-1999 another Vikalatnama was filed engaging Sri G. N. Verma and Sri S. K. Srivastava, Advocate. From a perusal of Vakalatnama it would transpire that the aforesaid Counsel were authorized to represent the applicants in the restoration application as well as in all subsequent proceedings. It would further appear that by way of abundant caution, this Court issued fresh notices on 17-4-2004 and notices were sent through registered post fixing 17-4-2004. It would further appear that the office was further directed to issue fresh notices fixing November 16, 2004. The notices issued mentioning residential address of the applicant were received back with endorsement affixed thereon that the respondents were not traceable. As stated supra, the applicants were earlier represented by Sri V. K. Srivastava and there is nothing on record to indicate that he was, at any point of time, disengaged by terminating the Vakalatnamas. On the contrary, the phraseology of Vakalatnama crystallizes that the Counsel appearing for the applicants were empowered to represent them even after dismissal of the suit for default, and further to prosecute appeal after the decree, the review as well as the appeal or the revision etc. on their behalf as the case may be. Subsequently, this Court by means of order dated 23-9-2004, It would appear, called upon the appellant's Counsel to inform Sri Virendra Kumar Srivastava and Sri S. K. Srivastava learned Counsel appearing for the respondents attended with further direction by the order dated 29-9-2004 to appear in the Court but none of the Counsel turned up and ultimately the Court directed the case to be listed in the next cause list showing the name of the aforesaid Counsel. Thereafter, it would further appear, the case was heard and the matter was finally decided on points involved on merits. It is nowhere averred in the affidavit filed in support of Recall/restoration application that the respondents ever disengaged any of the Counsel or terminated the Vakalatnama. Sri G. N. Verma learned, Counsel, who was subsequently engaged, stated across the bar that he had no instruction but the other two Counsels maintained an eerie silence and did not come forward with a statement of having no instructions in the matter. It is explicit from the record that the Court did not spare any efforts to secure attendance either of the respondents or their Counsels and ultimately in pursuance of the order of the Court, the names of Counsel were also ordered to be printed in the Daily Cause List with the avowed object of giving opportunity of hearing to the respondents. Another aspect steeped in mystery is that the application for restoration has not been presented through Counsel who had been representing the respondents since 1990 and there is no plausible explanation forthcoming on record as to why the respondents engaged a new Counsel subsequently for the purposes of presenting this application for restoration/recall other than those who represented them throughout since the year 1990. There is nothing on record to suggest that any of the Counsel had declined to file this application or any such application or reclused himself from the case. Another curious aspect is that the respondent claimed himself to be a carpenter and as well as Raj Mistri and it is not clear how he became Raj Mistri from a carpenter. There is no explanation what brought him to civil Court on 17-3-2005 on which date he claimed to have been apprised by Lukman Ahmad of decree having been passed in the second appeal. Further, it has also not been disclosed how the applicant knew Lukman Ahmad or that he was pairokar of transferee. It is clear from paragraph 18 of the affidavit that he engaged a third Counsel and he got certified copy of the order dated 9-2-2003 through his new Counsel namely, Ashfaq Ahmad Ansari Advocate. There appears to be no ostensible reason except that the applicants engaged a new Counsel simply to set up or invent a new ground for absence. The reasons for condonation of delay disclosed in the affidavit also do not inspire confidence and appear to be cock and bull story invented for the purposes of condonation of delay.
(3.) UNDER Order 3 Rule 4 of the C. P. C. and also regard being had to the phraseology of Vakalatnama executed in favour of the Counsels aforesaid, it leaves no manner of doubt that the Counsels whose name figured in the cause list on the date of hearing had the authority to represent the applicants but they for reasons inexplicable, did not turn up even to argue the case in order to assist the Court. In the above conspectus, the conclusion is irresistible that the respondents initially absented themselves with a purpose to a design and subsequently, emerged to plead that they had no knowledge of the progress in the matter. It does not commend to the Court that a person who is represented by array of Counsels could plead to be oblivious or ignorant of the progress of the case notwithstanding the fact that every conceivable efforts were employed by the Court by various orders initially to serve the respondents by registered post and subsequently, by seeking attendance of the Counsels who were representing the respondents since the year 1990. In the circumstances, it leaves no manner of doubt that the respondents deliberately avoided to appear in the case either personally or through their Counsels. Yet another noticeable aspect is that in the Vakalatnama filed by Satya Pal alongwith Jagdish on 12-7- 1990, Jagdish is shown to be son of Radhey Lal while the name of father of Satya Pal has not been disclosed and Instead of showing father's name, the word "known" has been enumerated. However, after the death of Jagdish Prasad, he began to claim to be the son of Jagdish Prasad. The factum of Satya Pal being son of Jagdish Prasad has been vehemently denied by Smt. Premwati, who claimed herself to be the heir and successor of Jagdish Prasad. In this connection, application for substitution-dated 23-5- 1991 filed by Smt. Premwati may be referred to. In paragraph 2 of the affidavit sworn on 26-4-1991 by Smt. Premwati filed in support of application, it has been specifically averred that Jagdish Prasad arrayed as respondent No. 1 had breathed his last on 17-6-1990 and he was survived by appellant as one of heirs besides his brothers but since his brothers were not resisting her claim in any manner whatsoever they need not be impleaded as a party in the present case. In reply to this paragraph, Satya Pal has not filed his personal affidavit but set up one Naushad son of Fazlur Haq of Mohalla Mufti Saharanpur who filed counter-affidavit in reply to the said affidavit. In reply to the averments made in paragraph 2 of the affidavit of Premwati, the deponent has not repudiated the averments of paragraph 2 of the affidavit but instead the phraseology employed is `not admitted'.;