RITU RAJ AWASTHI,J. - (1.) THE present writ petition was initially filed by one Jagdish Prasad @ Bachole who died during the pendency of the present writ petition and was substituted by his legal heirs, namely, Smt. Shiv Natha, Santosh Kumar, Durga Shanker, Ashok Kumar, Madhuri Devi and Malti Devi.
(2.) BY means of the present writ petition the petitioners have challenged the order dated 09.04.2004 (Annexure No.5) whereby the application (3Ka) moved under order IX Rule 13 of Civil Procedure Code to recall the ex parte order dated 19.01.2000, was rejected by the Opposite Party No.2, Civil Judge, Junior Divi­sion, (South) Unnao.The petitioner has also challenged the order dated 09.04.2004 (Annexure No.1) passed in Appeal No. 57 of 2002 by the Opposite Party No.1, Additional District Judge, 4th, Unnao. 2A. The factual matrix as borne out from the records of the writ petition are that the suit No. 71/1983 was filed in July 1983 by Opposite Party No.3, Raja Ram Shukla for permanent injunction and possession of land described in the site plan. The present petitioner was impleaded as opposite party in the said suit and he had filed his written statement on 24.11.1983.The issues were framed on 14.12.1988 and on 01.12.1994 the case was fixed for final hearing. On several dates the case was adjourned on the request of the petitioner for filing evidence. Ultimately on 15.04.1996 the evidence of the Opposite Party No.3 was recorded and the case was fixed for ex parte hearing. It is alleged that the Opposite Party No.3 (plaintiff in Suit No. 71/1983) had made certain amendment in the suit on 19.02.1992 after a period of 8 years of filing of the suit. By order dated 04.10.1993 the learned trial Court had issued commission. In spite of fact that earlier commission report dated 04.03.1986 was available on record. The petitioner when came to know about the said order dated 04.10.1993 applied for recall of the said order by moving a separate appli­cation. However, during the pendency of the recall application the Commissioner executed the commission and submitted his report before the trial Court. The application of the petitioner to recall the order dated 04.10.1993 was allowed on 05.02.1994. However, the learned trial Court by order dated 26.11.1994 confirmed the Commissioner report. The petitioner thereafter filed a revision before the District Judge against the order dated 26.11.1994, which was subsequently dis­missed. Thereafter, the petitioner had filed the writ petition No. 234 (M/S) of 1996 before this Court in which by order dated 16.09.1993 the proceedings of civil suit No. 71/1983 were stayed. The said writ petition was dismissed in default due to absence of the Counsel for the petitioner on 05.04.1999 as such the application for its restoration was moved which remained pending.
(3.) IT is alleged that the petitioner, somehow, came to know on 29.01.2000 that the suit No. 71 of 1983 has been decreed ex parte on 19.01.2000.Thereafter the petitioner on 03.02.2000 moved the application under Order IX, Rule 13 of C. PC. for recall of the ex parte decree order which was registered as Misc. Case No. 14/2000. The objections on the said application were filed by the Opposite Party No.3 and the learned trial Court after hearing both the parties by the im­pugned order dated 26.07.2002 came to the conclusion that there was no suffi­cient cause for non-appearance of the present petitioner and, therefore, the ap­plication under Order IX, Rule 13 was rejected.;