- (1.) S. U. Khan, J. Heard learned Counsel for the parties.
(2.) RESPONDENT No. 3 Basharat Hussain S/o Ata Ullah instituted a suit against his own father, i. e. , Ata Ullah respondent No. 4 (defendant No. 2) and petitioner Zaheer Alam (defendant No. l ). Suit was numbered as O. S No. 555 of 1982 on the file of Munsif Shahjahanpur. It was alleged in the plaint that the house in dispute initially belonged to Ata Ullah father of the plaintiff who orally gifted the same to the plaintiff, and petitioner defendant No. 1 was licensee in the said house on behalf of the plaintiff. The relief claimed in the plaint was for permanent prohibitory injunction restraining the defendants from making any construction in the house in dispute or damaging or demolishing the same. Separate written statements were shown to have been filed on behalf of both the defendants admitting the claim of the plaintiff. Thereafter Munsif Court No. 1 Shahjahanpur decreed the suit on 6-11-1982. The suit was decreed under Order XV, Rule 1, C. P. C. only and only on the basis of admission contained in the plaint. Order XV, Rule 1, C. P. C. is quoted below: "where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce the judgment. " The trial Court specifically mentioned that there was no need to frame any issue. Thereafter restoration applications were filed by both the defendants, i. e. , petitioner as well as respondent No. 2 Ata Ullah father of the plaintiff. Petitioner in his application, copy of which is Annexure 6 to the writ petition stated that fraud had been played upon him in getting his signatures on Vakalatnama and he was neither aware of the nature of the suit nor date fixed therein. In the said application details were not given. In the restoration application filed by Ata Ullah father of the plaintiff, it was stated that the other defendant, i. e. , petitioner informed him about the decree of the suit. Ata Ullah also denied having engaged any Counsel and he also levelled the charge of conspiracy and fraud upon his son. He stated that he was the owner of the house in dispute and he had never gifted the same to his son. He further stated that his son told him that some case was required to be filed in respect of the house tax of the house in dispute and believing him he signed upon some papers, which later on were used in the suit in question.
(3.) PETITIONER's restoration application being Misc. Case No. 195 of 1982 was dismissed in his default on 25-5-1984 (restoration filed by the plaintiff's father was registered as Misc. Case No. 199 of 1983 ). Thereafter restoration application was filed by the petitioner on 21-7-1984 for recalling the order-dated 25-5-1984. The said application was registered as Misc. Case No. 177 of 1984. Even though no counter- affidavit was filed to the affidavit filed in support of the said application and only oral objections were raised still the said application was dismissed as barred by time. In the application and the affidavit it was stated that petitioner came to know about the dismissal order on 20-7-1984, i. e. , one day before filing the restoration application. The trial Court did not disbelieve the said version still application was dismissed as barred by time. Trial Court held that no formal application for condonation of delay was filed. Petitioner in his second restoration application had stated that in both the restoration applications (195 of 1982 and 199 of 1983) same dates were fixed and on 31-3-1984 the next date fixed was 20-7- 1984 hence he could not come on 25-5-1984. It appears that on 31-3-1984 different dates were fixed in both the original restoration applications, i. e. , 25-5-1984 in the petitioner's restoration and 20-7-1984 in the restoration application of father of the plaintiff. Both the restoration applications have been filed for setting aside the same ex parte decree hence there was no sense in fixing different dates. If different dates were fixed then it was quite natural that petitioner was genuinely misled into believing that 20-7- 1984 was the next date fixed in both the original restoration applications. The second restoration application was dismissed on 14-8-1986. Against the order dated 14-8-1986, appeal was filed by the petitioner being Misc. Civil Appeal No. 126 of 1986. Thereafter in the said appeal on 24-9-1986 an application was filed that the appeal should be treated as revision. The said appeal was dismissed on 7- 10-1986 by District Judge Shahjahanupr by the following order : "none present. Counsel took time to show law for maintainability of appeal. No law showed. Appeal does not lie. Summarily rejected. ";