D.K. Seth, J. - (1.) OPPOSITE parties Nos. 3 to 10 are the substituted plaintiffs in original suit No. 629 of 1987. In the plaint, the plaintiffs had claimed right of passage which has been shown in the map annexed to the plaint by demarcating the same in blue and red colours and described being the obstruction caused in blue colour passage by letter STUV and that in the red colour passage OPQR and accordingly made a prayer for mandatory injunction directing the defendants to remove the watt OPQR in red colour lane and STUV in blue colour lane. In paragraph 11 of the plaint, the impleadment of defendants 7 to 11 has been explained that they have their house on the east of the plaintiffs house and their presence was necessary for finally setting the issue and in case the said defendants do not dispute the plaintiffs claim, they may be exempted from costs. Subsequently the plaint was amended to the extent that after the filing of the suit, the defendant had raised unauthorised construction at the end of the red colour lane towards north and towards east of the open land which is used as passage. The said amendment was allowed on 12th November 1991. The plaintiff filed an application for restraining the defendants from making any construction on the east add north of the red colour passage. The said application is still pending. Subsequently the plaintiff filed another application which has been numbered as 57 C for directing the defendants to remove the newly constructed wall on the north and east of the red colour passage. That application was allowed ex parte against which a revision was moved unsuccessfully. In an order dated 12th May 1993 passed in Writ petition No. 35576 of 1992 against the said orders, it was found as under: In my opinion, in view of the finding recorded by the revisional court that land on the south of Bada Ghar is not a passage, the direction for demolition of the walls raised by petitioner could not be given. The order impugned dated 14.9.92 thus cannot be sustained, as the operative part is not in consonance with the findings recorded. The impugned order suffers from manifest error of law. Thereafter the matter was heard once again and by order dated 16th April 1994, defendant No. 11 was directed to remove the construction raised in from of the house of the plaintiff within one month from the date of the order and at least the eastern passage and the door of the plaintiff which is shown as D -2 by red colour should be cleared Defendant No. 11 made an application for recalling the said, order dated 16th April 1991. The same was dismissed on account of non appearance of defendant No. 11 on 10th of November 1994. On Ist of December 1994, he moved another application for recalling the order dated 10th November 1994. The application was again rejected on 2nd March 1995 on account of default of appearance of defendant No. 11. On 30th March 1995, another application was moved for setting aside the order dated 3rd March 1995. After hearing this application was rejected on 20th of May 1995. Against this order, the present petition has been moved.
(2.) ON the prayer of the learned counsel for the petitioner, leave is granted to amend the cause title so as to convert the petition tinder Article 227 of the Constitution of India. In support of his contention, Mr. Sharad Sharma holding the brief of Mr. H.N. Sharma, drawing my attention to the map, contended that the wall which has been sought to be removed by the impugned order dated 16th April 1994 which was sought to be recalled was not subject matter of the suit and no where any allegation was made with regard thereto. The claim was only in respect of two passages shown in blue and red colours with which the defendant No. 11 has no quarrel and defendant No. 11 does not dispute the right of the plaintiff with regard to the said two passages coloured blue and red. He further contends that the defendant No. 11 had explained the reason due to which he could not appear on the respective dates and the learned courts ought to have taken into account the said fact. Both the courts below had acted illegally and with material irregularity in dealing with the petitioner's applications for recalling the respective orders in the facts and circumstances of the case. His further contention was that while recalling the order, the court should not have looked into the past conduct. The court would have acted on the basis of the explanation given for the default made on a particular date. He further contends that in view of the total illegality in the order dated 16th April 1994 which appears to be wholly without jurisdiction since the property on which the said construction was raised is not subject matter of the suit, therefore, in order to prevent total failure of justice, the petitioner should have been allowed to contest the case.
(3.) MR . P.K. Shukla, learned counsel for the respondent No. 3 to 10, on the other hand, vehemently opposes the contention of Mr. Sharma. He points out that there is no infirmity of illegality in the order dated 16th April 1994. He further contends and draws my attention to the fact that the plaint was amended by incorporating the impugned construction at paragraph 10 of the plaint. Therefore, it cannot be said that it was outside the Scope of subject matter of the suit. He further claims that the property of defendant No. 11 is also used as passage by the plaintiff. According to him, by reason of the alleged construction made by defendant No. 11, the ingress and egress from the plaintiff's property has been closed. He contends, relying on the facts of the case, that the conduct of defendant No. 11 was so bad that he is not entitled to claim equality. The defendant has shown thorough negligence and want of diligence in his conduct all through. He has also pointed out that the brother of defendant No. 11 who is a practicing advocate of the trial court would have taken steps on behalf of defendant No. 11. The said brother is also a party to the suit as defendant No. 8. According to him, both the courts having found the matter concluded by concurrent findings of facts with which in exercise of the revisional jurisdiction, this court should not interfere. Therefore, the application is liable to be dismissed.;