S.U.Khan, J. - (1.) THIS writ petition was allowed by me on 23.9.2008 without hear ing any one on behalf of contesting respon dents as no one had appeared on their be half. Thereafter, rehearing application was filed. Thereafter, the matter was heard on different dates and affidavits, counter affi davits and supplementary affidavits were filed by both the parties. On 7.1.2009, ar guments of learned Counsel for both the parties were heard on the rehearing appli cation as well as on the merit of the writ petition and judgment was reserved.
(2.) PARAGRAPHS No. 2 and 3 of my judgment dated 23.9.2008, which contained necessary facts, are quoted below: - "Petitioners or their predecessors in interest filed O.S. No. 196 of 1975 against respondents No. 3 & 4, Mithai lal and Jawahar lal. The suit was decreed ex parte on 5.11.1977. Copy of the ex-parte judgment is Annexure CA-3 to the counter affidavit. The suit was de creed for permanent prohibitory injunction restraining the defen dants from interfering in the pos session of the plaintiff. It was fur ther directed through the said ex parte decree that the defendants should remove their possession over the land in dispute within a month and shall deliver possession of the land in dispute to the plain tiff. Thereafter, execution application was filed numbered as Execution Case No. 66 of 1980. In the execution proceedings, Commission was is sued to the Amin. Amin reported that pucca constructions were there in the form of a pucca house and unless decree for demolition was passed, simple decree for posses sion could not be executed. Trial Court/Executing Court/Munsif, Bhadohi, Varanasi rejected the exe cution application through order dated 4.8.1981 holding that in exe cution of a decree for possession alone, a pucca house could not be demolished as no order of demoli tion was there in the decree. Against the said order, Civil Revi sion No. 551 of 1981 was filed, which was dismissed by A.D.J., Gyanpur, Varanasi through order dated 31.5.1983, hence this writ petition." I am satisfied that sufficient ground for non-appearance on 23.9.2008 when writ petition was allowed ex parte has been made out. Accordingly, the said order is set aside subject to cost. The aspect of cost will be dealt with afterwards in this judgment. The main argument of learned Counsel for the respondent is that against ex parte decree, restoration application had been filed and in the restoration applica tion, execution of the decree had been stayed and the restoration application has not yet been decided. Copy of order-sheet of restoration case (Misc. Case No. 140 of 1978) has been annexed along with sup plementary affidavit filed by the respon dents on 5.11.2008 and copy of order sheet of revision has been annexed along with supplementary affidavit filed on behalf of petitioner on 16.12.2008. In the restoration case on 30.8.1978, following order was passed:- "Issue notice to O.P. fixing 30.9.1978 for objection and disposal. Meanwhile, the execution of decree in Civil Suit No. 196 of 1975 is stayed till further order."
(3.) THE said order sheet runs till 26.3.1983. THEreafter, there is no entry in the said order sheet. In the order sheet of the civil revision on several dates orders were passed that file of the original case should be summoned. On several dates in the order sheet, it is mentioned that file of Misc. Case No. 140 of 1978 had not been received. Such orders on the order sheet are of 21.12.1982. 20.1.1983, 7.2.1983 and 25.2.1983. THEreafter, matter was heard on 13.4.1983 and judgment was delivered on 31.5.1983. On 16.4.1983, an order was passed directing the case to be put up for further hearing on 7.5.1983. Matter was again heard on 7.5.1983. From the perusal of the order sheet of the revision, it is clear that order for summoning the file of restoration case was passed and revision was adjourned on several dates on the ground that the said file had not been received. Thereafter, there is no entry as to whether file was received or not? In the impugned judgment of the revisional Court also there is absolutely no mention in that regard. Learned Counsel for the respondents categorically stated that the file of the restoration case was sum moned and till date it is lying in the record room tagged with the file of the civil revi sion.;