M. Katju, J. - (1.) THIS writ petition as well as Writ Petition No. 15822 of 1996 are being disposed of by a common judgment.
(2.) I have heard Sri V. M. Zaidi for the petitioner and Sri V. K. Birla for the respondent. The petitioner has claimed that he is the owner of House No. 10/89 situated in Katra Madari Khan, Agra. It is alleged in Paragraph 2 of the writ petition that the respondent No. 3 Abdul Aziz on the basis of forged sale-deed dated 7.2.1987 alleged to have been executed by the petitioner claims to be the owner of the said house. The said respondent No. 3 filed a Civil Suit No. 678 of 1992 against the petitioner which was decreed ex parte on 3.12.92 vide Annexure-1 to the writ petition. The petitioner has alleged that he was not served summons or notice of the said suit and he came to know about it for the first time on 7.1.93. Hence, he immediately Contacted a local counsel and on 8.1.93 he filed an application under Order IX, Rule 13, C.P.C., true copy of which is Annexure-2 to the writ petition. He also filed an application under Section 5 of Limitation Act. The respondent No. 3 contested this application by filing a counter-affidavit, true copy of which is Annexure 3 to the writ petition. The petitioner's rejoinder affidavit is Annexure 4 to the writ petition. The application under Order DC, Rule 13, C.P.C. was rejected on 17.4.93 vide Annexure-5 to the writ petition. The petitioner filed an appeal against that order which was dismissed on 2.11.94 vide Annexure-6 to the writ petition and hence this writ petition. I have carefully perused the impugned order dated 2.11.94 and in my opinion, the Court below has taken a hyper-technical view in this matter. No doubt this Court does not normally interfere with a finding of fact, but in the present case while the ex parte judgment was delivered on 3.12.92, the restoration application under Order IX, Rule 13, C.P.C. was filed on 8.1.94. Thus, there was not much delay in filing the restoration application. The Court below has observed that the restoration application was filed on 8.1.93 while the inspection of the record was done on 12.1.93. In my opinion, this fact alone could not have justified the Court below in rejecting the restoration application. It is quite possible that the petitioner got some information that an ex parte decree has been passed against him and then he applied for restoration immediately so that there could not be delay in filing the same, and the inspection was done later. In my opinion, a liberal view should have taken by the Court below and the restoration application should not have been rejected on such a hyper-technical ground.
(3.) HENCE, I allow this petition and set aside the impugned ex parte decree dated 3.12.92 as well as orders dated 14.7.93 and 2.11.94. The application under Order IX, Rule 13, C.P.C. shall stand allowed but I direct that the suit will be decided within four months of the productions of the certified copy of this order before the trial court. The parties will co-operate in deciding the suit and not seem adjournments. The Writ Petition No. 15822 of 1996 has consequently become infructuous, and is dismissed as such.;