- (1.) S. N. Srivastava, J. The subject matter of impugnment before the Apex Court in Special Leave Petition was the order dated 7-10-2004 passed by this Court whereby second appeal was restored to its original number. The order of the Apex Court dated 16-1- 2006 is excerpted below : "having heard the learned Counsel for the parties, we are of opinion that the impugned order having not been taken into consideration, the past conduct of the respondent and furthermore not being a speaking order, the High Court should consider the matter afresh, particularly in view of the fact that the second appeal was filed on 1-4-1983, the special leave petition is disposed of with the aforementioned observations. "
(2.) THE quintessence of the aforesaid order passed by the Supreme Court is that this Court did not reckon with the past conduct of the respondent and further that the order restoring the second appeal was not a speaking order. Now the case has come up before this Court by nomination vide order of the Senior Judge dated 4-7- 2006. Few facts forming background of the case may be recounted for facility of decision on the vexed points. Initially, appellant plaintiff Instituted a suit for possession and for arrears of damages. The suit culminated in being decreed by the trial Court but the appeal filed by the opposite parties was allowed, and judgment decreeing the suit was reversed. It is in this backdrop that the appellant preferred the second appeal in this Court in the year 1983. It would appear from the record that notices were sent to opposite parties fixing 21-11-1983 but when it yielded no result, the notices were sent by registered post which according to the facts on record, were received back undelivered attended with the endorsement of the post office that no such person was available at the address and therefore, the notices were sought to be served through publication and it was only thereafter the respondent No. 5 entered appearance through Sri S. M. A. Kazmi, Advocate. The other respondents in the array of parties who are the full-blooded brothers of respondent No. 5 were not represented and therefore, the appellant was compelled to take fresh steps for service upon other respondents. Subsequently, the appellant filed Expedite Application on the ground that she was suffering a lot due to pendency of the second appeal and also on account of the fact that the respondents were acting to her detriment, the aforesaid Expedite Application culminated in being allowed by means of order of the Court dated 7-12- 1991. It would further appear that inspite of the fact that case was expedited on 7-12-1991, it suffered adjournment on 21st December, 1992 due to adjournment sought by Sri S. N. Verma learned Counsel appearing for the respondents. On 13-1-1993, the adjournment was sought on behalf of Sri S. M. A. Kazmi learned Counsel for the respondents. Then the case was heard by Justice Katju (as he then was) but by order-dated 7-8-1991, his lordship reclused himself from the close. It would further crystallize from the record that case was listed on 5-9-1994 but it culminated in dismissal for default. An application then was moved on behalf of the appellant on 20-7- 2000 seeking to recall the order by which the appeal was dismissed for default. On 17-1-2001, the aforesaid application came to be dismissed for default. Another application for recall of order dated 17-1-2001 was moved which was registered as Restoration Application No. 85019 dated 7-5-2002 which also ended up in being dismissed on 1-5-2002. However, restoration application for recall of order dated 1-5-2002 was allowed on 19- 10- 2002. Yet another application for recall of order was allowed on 28-1-2003. Thereafter, restoration application for recall of order dated 5-9-1994 was placed before this Court and was allowed vide the order dated 7-10-2004. It was this order, which was taken in challenge before the Apex Court in the Special Leave Petition.
(3.) I have heard learned Counsel for the parties and have also been taken through the record. Sri Shyam Narayan learned Counsel appearing for the appellant canvassed that the appellant was initially represented by Sri N. C. Pandey, Advocate who was spirited away by death sometime in the year 1996, He further submitted that on gaining knowledge of death of her Counsel, the appellant moved application on 20-7- 2000 on the ground that Sri N. C. Pandey was prosecuting her case in the High Court and that the appellant had no knowledge of his death nor any Information was communicated to her by anybody about his death and further that immediately after gaining knowledge, she moved the application. It was further urged that the cause shown was genuine and prayed for recall of the order dismissing the appeal for default. In opposition, learned Counsel for the opposite party urged that there is no indicium on record to show that Sri N. C. Pandey represented the appellant in the case at any stage attended with further submission that power filed by Sri N. C. Pandey was not available on record. He further contended that the plea taken by the appellant was a charade intended for the purposes of restoration application. He further contended that there was massive delay in filing restoration application attended with further submission that cause shown was not genuine and therefore, proceeds the submissions, no case is made out for condemnation of delay or for recall of order dated 7- 9- 1994.;