S.S.CHAUHAN,J. - (1.) THIS writ petition has been filed challenging the order dated 18.04.2009 passed by opposite party No. 1 whereby the order dated 23.01.2007 passed by opposite party No. 2 has been upheld.
(2.) THE facts giving rise to the present petition are that a suit for permanent injunction was filed by opposite party No. 3 against the petitioner and opposite parties No. 4 to 6 regarding plot No. 218 situate at Village - Bhilawan, Alambagh, District - Lucknow. The suit proceeded ex-parte on 08.03.1990 and an application was moved for recalling the said order and the order dated 08.03.1990 was recalled. Thereafter the suit proceeded and again an ex-parte order was passed on 05.04.1994. The application was moved for recalling the aforesaid order and on 17.08.1994 the said order was recalled but the petitioner did not take any interest in the matter and so again an order for proceeding ex-parte against the petitioner was passed on 14.02.1995. It is thereafter that the petitioner disappeared and the suit came to be decided by means of judgement and decree dated 15.01.2001. Thereafter execution was moved for implementation of the decree on 05.10.2001. The execution proceedings went on and the petitioner on 23.03.2002 moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree alongwith an application under Section 5 of the Limitation Act. An objection was filed to the aforesaid application on 30.05.2003. Thereafter, the petitioner filed Writ Petition No. 5615 (M/S) of 2006, which was disposed of with a direction to opposite party No. 2 to dispose of the application moved by the petitioner under Order 9 Rule 13 within six weeks from 01.12.2006. Writ Petition No. 4365 (M/S) of 2006 was also filed by opposite party No. 3 in which a direction was given by this Court to decide the Execution Case No. 10 of 2001 expeditiously, say within a period of four months. The application of the petitioner moved under Order 9 Rule 13 CPC was rejected vide order dated 23.01.2007. The said order was challenged by the petitioner in Writ Petition No. 699 (M/S) of 2007, which was dismissed on the ground of availability of alternative remedy. The petitioner thereafter filed an appeal against the order dated 23.01.2007 rejecting his application under Order 9 Rule 13 CPC. The appellate court after examining the pleadings of the parties and evidence on record, came to the conclusion that the order passed by the trial court was proper, valid and justified in the circumstances of the case and rejected the appeal of the petitioner vide order dated 18.04.2009. The petitioner thereafter feeling aggrieved with the order of the appellate court dated 18.04.2009 has filed this writ petition. Submission of learned counsel for the petitioner is that a liberal view ought to have been taken in condoning the delay in moving the application under Order 9 Rule 13 CPC and the court below committed gross illegality in not following the verdict of the apex court. It is also submitted that the petitioner has throughout pursued his case genuinely and with all earnest efforts but on account of the fact that his counsel did not inform him the correct position, as such, he could not attend the court. It is also submitted that the ex-parte decree could not have been passed against the petitioner as the petitioner was always ready and pursued the court proceedings. In support of his submission, learned counsel for the petitioner has placed reliance upon the cases of (Smt.) Saroj Singh and Another v. Board of Revenue, Lucknow and Others, 2008 (26) LCD, 1610, Ram Chandar v. Deputy Director of Consolidation, Azamgarh and Ors, 2003 (2) JCLR 51 (All), U.P. State Sugar Corporation Ltd. v. District Judge, Saharanpur, 2004 (1) JCLR 659 : 2004 AII LJ 3333 (All), Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353, Srinagar Development Authority v. M.H. Leharwal and Ors., 2001 (1) JCLR 75 (SC), Jagdish Sawhney v. Harbans Singh and Ors., 2001 (1) JCLR 76 (SC) : AIR 2000 SC 3143, Smt. Sudesh and others v. Additional District Judge, Court No. 8, Kanpur Dehat and others, 2006 (24) LCD 230 : 2006 (2) ALJ 182 and Smt. Kaushalya Devi and others v. Additional District Judge, Court No. 1, Saharanpur, 2007 (25) LCD 4.
(3.) IN reply to the argument of learned counsel for the petitioner, opposite party No. 3, who has appeared in person has submitted that the petitioner has not been taking any interest in the disposal of the case and he had been trying to linger on the case again and again by adopting dilatory tactics and that is why after the first ex-parte order passed on 08.03.1990 was recalled, then the second order dated 05.04.1994 was recalled and thereafter from 14.02.1995 the petitioner withdrew from the proceedings deliberately and knowingly. It is also submitted that the petitioner appeared in Criminal Case No. 844 of 2007 as PW-1 in the court of Judicial Magistrate-III, Lucknow on 04.01.2000 and he was cross-examined on 29.01.2000 and the suit was decreed ex-parte on 15.01.2001. So, it cannot be said that the petitioner was having no knowledge about the progress of the case. Once he was present in the premises of the court, he could have easily confirmed the progress of the case from his counsel or from the office concerned where the case was pending. He did not make any efforts and took the things for granted and did not appear after 14.02.1995 which shows his conduct in not pursuing the proceedings deliberately and intentionally. It is also submitted that such negligent and irresponsible litigant should not be given any sympathy of this Court and the orders of the courts below be maintained. Learned counsel for the opposite parties, in support of their contentions have placed reliance upon the cases of Salil Dutta v. T.M. and M.C. Private Ltd., (1993) 2 SCC 185 : (1993 AIR SCW 1178), Jagannath Prasad v. Sant Hardasram Sevashram and others, 1978 All. L. J. 261, Om Prakash Singh v. Smt. Satya Devi and another, 1989 All. L.J. 482, Ram Pal v. Birmo (Smt.), 2008 (3) ARC 302 : (2008 (4) ALJ 81) : 2008 (6) ALJ (DOC) 12 (ALL), Roop Chand Jain v. Pushpa Devi (Smt.) and another, 2008 (3) ARC 125 : (2008 (6) ALJ (DOC) 12 (ALL), D. Gopinathan Pillai v. State of Kerala and another, (2007) 2 SCC 322 : (AIR 2007 SC 2624), P.K. Ramachandran v. State of Kerala and another, AIR 1998 SC 2276, State of U.P. and another v. Smt. Asha Srivastava, 2008 (2) ARC 379.;