- (1.) A. K. Yog, J. A J. S. C. C. Suit No. 23 of 1985 was filed before Respondent No. 5, IInd Additional District Judge, Small Cause Court, Moradabad, against one defendant Abdul Samad, predecessor of Respondent Nos. 1 to 3 and Respondent No. 4. The suit was dismissed on Novem ber 20,1995. Plaintiff field S. C. C. Revision No. 1 of 19% under Section 25 of the-Provincial Small Cause Court Acl, which was transferred to the Court of Respon dent No. 5. Revision was dismissed in default on 28th May, 1998 (Annexure 1 ). Plaintiff- revisionists filed an application for setting aside the order dated 28th May, 1998. A Restoration Application (registered as Misc. Case No. 28 of 1998) for recalling of the said order was filed along with application under Section 5 of Limitation Act for condoning of delay of 38 days in filing restoration application, copies of the said Restoration Application and Application under Section 5 of Limitation Act have been filed as Annexure Nos. 2 and 4 to the writ petition.
(2.) THE Revisional Court directed vide order dated 1-2-1999 for substituted ser vice by publication in newspaper and req uisites were to be submitted by the Revisionists in Court on or before 9- 2-1999. THE Revisionist failed to supply req uisites for publication of notice. THE aforementioned Restoration Application Misc. Case No. 28 of 1998 was dismissed for non-prosecution vide order dated 9-2-1999 (Annexure 5 to the petition ). THE petitioner thereafter filed an application for recalling of the order dated 9-2-1999, the said application was supported by an affidavit of one Yunus Khan, Advocate, the counsel representing the Revisionist in that Court. True copies of the said applica tion and affidavit have been annexed as Annexure Nos. 6 and 7 to the writ petition. THE Court below has rejected the said application by means of impugned judg ment and order dated 16ih March, 1999 (Annexure 8 to the writ petition ). Feeling aggrieved plaintiff filed writ petition claiming a writ of certiorari to quash order dated 9-2- 1999 (Annexure 5.) Petitioner has however, also sought relief for quashing of the orders dated 28th May, 1998 (Annexure 1) and 16th March, 1999 (Annexure 8 ). I have heard Ms. Chitra Lekha Satsangi, Advocate, on behalf of the petitioner at the admission stage and propose to decide the writ petition finally as otherwise purpose of filing suit before Judge, Small Causes Court shall be itself frustrated and even otherwise, I do not find ground for keeping the writ petition pend ing, in view of the settled and crystallised legal position.
(3.) AT the outset I would like to men tion that the writ petition is not main tainable against these orders. Two orders dated 9th February, 1999 and 28th May, 1998 (Annexure 5 and 1 respectively) are not being challenged and learned counsel for the petitioner, as prayed, is permitted to amend the prayer contained in Clause (a) accordingly. Learned counsel for the petitioner submitted that the Court below has erred in law and committed manifest error ap parent on the face of record in rejecting the application (Annexure 6 ). Court did not disbelieve the affidavit of the Advocate filed before it. Said affidavit contained reasons for not furnishing requisite on or before 9-2-1999. Explanation has not been disbelieved. The Court below was not jus tified in being swayed by extraneous con sideration, namely, past conduct of the Revisionist, particularly, when it had no occasion as yet to come to a conclusion that default in the past was deliberate or intentional.;