D.K.Seth, J. - (1.) An order of demolition of the house situated in the suit property belonging to the plaintiff petitioner was passed by the Kanpur Development Authority under Section 27, sub-section (1) of the U. P. Urban Planning and Development Act, 1973. The petitioner as plaintiff filed Original Suit No. 897 of 1985 before the learned Additional Civil Judge (Senior Division). Kanpur Nagar for an injunction restraining the Kanpur Development Authority defendant from demolishing the house and obtained an ad interim injunction. The suit was dismissed in default on 29th November, 1994. Upon an application for restoration, the said order was reversed and the suit was restored on 25th August, 1995. The suit was again dismissed in default on 18th November, 1996. An application for restoration of the suit was filed on 31st May, 1997. The said application of restoration was dismissed on 3rd July, 1998 on the ground that by mistake the date was noted in the diary of the counsel as 7th July, 1998. This application was dismissed by an order dated 4th March, 1999 by the learned Additional Civil Judge (Senior Division), IIIrd Court. Kanpur Nagar passed in Case No. 48/74/98. The said order was affirmed in Civil Revision No. 107 of 1999 by an order dated 23rd April, 1999 passed by the District Judge, Kanpur Nagar. These orders have since been challenged by Mr. Ajay Yadav, learned counsel for the petitioner. According to him, the petitioner had made out sufficient ground for recalling the said order. Inasmuch as no objection was filed to the affidavit filed by the petitioner and that there were sufficient grounds for his non-appearance.
(2.) On the other hand. Mr. M. M. D. Agarwal, learned counsel for the opposite parties contends that the petitioner on the apprehension that there is no merit in the suit, had been lingering on with the suit in order to take advantage of the interim order granted in the suit. According to him. an order under Section 27 (1) of the 1973 Act is appealable under subsection (2) thereof. Therefore the petitioner having known the fate of the suit, he was after dragging on the same. According to him, both the Courts below had found that there was no sufficient cause made out and at the same time, the only purpose was to delay the suit, which according to him, is concurrent finding of fact arrived at by the Courts below, which should not be disturbed by this Court in revision on an application under Article 226 of the Constitution of India.
(3.) I have heard both the learned counsel at length.;