S.U.Khan, J. - (1.) Heard learned counsel for the petitioner as well as learned counsel for respondent No.2, the only contesting respondent, who has appeared through caveat and has agreed for disposal of the writ petition without filing any counter affidavit.
(2.) Initially, the petitioner filed suit for eviction against respondent No.2, Khamani Singh, stating in the plaint of the suit, that petitioner was owner landlord and respondent No.2 was tenant. The said suit was numbered as S.C.C. Suit No.63 of 1991. The said suit was decreed by J.S.C.C., Moradabad, however the said judgment was reversed by 11th A.D.J. Moradabad in S.C.C. Revision No.56 of 1992 decided on 07.03.1994 and petitioner was directed to file regular suit, as in the opinion of the revisional court, question of title was involved. Thereafter, petitioner filed O.S. No.349 of 1995 before Civil Judge, Senior Division, Moradabad. Copy of the plaint is Annexure SA-1 to the supplementary affidavit filed on 18.09.2007. The said suit was decreed ex parte by Additional Civil Judge, Senior Division, Moradabad/ Additional J.S.C.C., Moradabad through judgment and order dated 11.01.2000. Thereafter, restoration application was filed by the petitioner defendant, which was registered as Misc. Case No.23 of 2001. In the restoration application, defendant stated that he was ill on 05.10.1999 and he could recover only on 25.02.2001. The said version was not accepted by the Trial Court. Accordingly, restoration application was dismissed on 18.03.2005. Against the said order, Civil Revision No.84 of 2004 was filed. The said revision was dismissed by A.D.J. Court No.9, Moradabad on 21.08.2007, hence this writ petition.
(3.) In my opinion, defendant petitioner was not as vigilant as an ordinary litigant is excepted to be. However, it cannot be said that defendant was extremely negligent. In restoration matters, some lenient view is warranted. Defendant had stated that he had fallen ill and remained ill for two or three months. In this regard reference may be made to AIR 2001 SC 2497 M.K. Prasad v. P. Arumugam , paragraph-9 of which is quoted below:- "In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his application filed under S.5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but on his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exist for setting aside the ex parte decree as well.";