Permod Kohli, J. - (1.) DELAY of 635 days in filing this Regular Second Appeal, is sought to be condoned through medium of this application filed on behalf of the defendants/applicants. The admitted factual position relevant for purposes of the present application is noticed below:
(2.) RESPONDENT No. 1 herein filed a Civil Suit No. 85 of 2002, against the applicants and respondent Nos. 2 to 5 in the Court of Addl. Civil Judge (Senior Division), Gohana, claiming declaration with consequential relief of permanent injunction. The defendants were proceeded ex -parte in the trial Court and consequently, the suit came to be decided vide judgment and decree dated September 25, 2004. The trial Court, however, dismissed the suit of the plaintiff. The circumstances where -under the applicants and respondent Nos. 2 to 5 herein (defendants in the suit), were proceeded ex -parte are not evident from the judgment of the trial Court. The trial Court simply made following observations in para 3 thereof: Defendants were proceeded ex -parte after they failed to put up appearance in the Court. The plaintiff/respondent No. 1 herein, preferred an appeal being Civil Appeal No. 138 of 2004, in the Court of Addl. District Judge, Sonepat against the ex -parte judgment and decree(dismissal of suit). The first Appellate Court also proceeded ex -parte against the respondent Nos. 1 to 4 and 9 in the appeal before it (defendants in the suit), who are the applicants herein this application. The lower Appellate Court, however, noticed the circumstances where under the trial Court had proceeded ex -parte against the defendants, the applicants/appellants herein. It has been mentioned that the registered letters sent to defendant Nos. l, 2, 3 and 5, 6 & 9 were received back with the report of "refusal" and they were proceeded ex -parte vide order dated August 14, 2002. It is further noticed that the service on defendant Nos. 4, 7 and 8 has been effected through munadi and they were proceeded ex -parte vide order dated January 31, 2004. The lower Appellate Court after recording these observations proceeded to decide the appeal and allowed the same vide its judgment and decree dated March 02, 2005, whereby the judgment and decree of the lower Court was set aside and the suit filed by respondents decreed.
(3.) THE applicants who were respondent Nos. 9 and 1 to 4 before the lower Appellate Court have preferred the present appeal along -with an application for condoning the period of delay, whereas respondent Nos. 5 to 8 have been arrayed as pro -forma respondent Nos. 2 to 5 herein.;