- (1.) By an order dated 18-4-1996 passed in Appeal No. 247 of 1989 by Additional District Judge (VII) Court, Bijnor, the appeal was dismissed, for default. An application under Order 41, Rule 19 of the Code of Civil Procedure, was filed. By an order dated 18-3-1998 the said application was dismissed. It is against this order the present writ petition has been filed.
(2.) Sri N. C. Rajvanshi, Senior Advocate, appearing on behalf of the petitioner points out that the impugned order is wholly perverse and could not have been passed, in the facts and circumstances of the case. He has led me through the records of the case.
(3.) Sri M. S. Haq, learned counsel for the opposite parties opposes the contention of Sri N. C. Rajvanshi. According to him the petitioner has not been able to show sufficient cause for his non-appearance so as to enable the Court to restore the appeal. According to him writ jurisdiction can be invoked by a person who comes with unclean hand. Unless the petitioner comes with clean hands he is not entitled to any relief. He also contends that the order impugned is concluded by finding of fact which this Court cannot interfere in exercise of writ jurisdiction. He also contends that the petitioner had moved writ petition No. 632 of 1998, which was disposed of by this Court on 2-3-1998. But the said fact has not been disclosed in the present writ petition. As such the petitioner is guilty of suppression of material facts, due to which it can very well be said that the petitioner has not come with clean hands. Therefore he cannot invoke writ jurisdiction. He further contends that the appeal was dismissed once earlier in the year 1992 and was restored in the year 1993. The petitioner appears to be habitual defaulter. In fact, the petitioner's game is only to delay the process and keep the matter hanging and thereby harass the opposite parties. Therefore, by reason of his conduct this Court should not exercise its discretionary jurisdiction in his favour. On these grounds he contends that the writ petition should be dismissed.;