As per the order sheet dated 14.10.2011, the case was called out and the parties were present and the case was again adjourned to 18.10.2011.
Subsequently, the appellants defendants did number appear in the suit and the suit was decreed ex parte on 10.05.2012.
The fact that the order in the said writ petition was placed before the High Court on 30.05.2011 is clear from the order sheet of the trial companyrt dated 04.03.2011 which reads that Proceeding of suit is stayed by Honble Allahabad High Court Record may be produced on 30.05.2011 for further orders.
The said writ petition remained pending for nearly fifteen years.
Date 2018.10.10 145758 IST Reason Respondent No.1 Raziya since dead companytended that appellants No.
Respondent No.1 Raziya since dead filed a Civil Suit No.591 of 1979 against the appellants No.1 to 3 for cancellation of sale Signature Not Verified deeds dated 17.02.1979 and 17.05.1979 in favour of the appellants Digitally signed by MAHABIR SINGH and for relief of permanent injunction against them over the suit land.
Before the trial in Suit No.591 of 1979 was taken up, substitution applications No.113K2, 114G2, 115G2, 116G2 and 117G1 were taken up and orders were passed on various dates.
The said Suit No.591 of 1979 was decreed on 16.04.1981 against appellants No.1 to 3 with the observation that they had been properly served and had appeared and sought time for filing written statement but despite ample time being given, they had number filed written statement.
The High Court dismissed the Second Appeal No.819 of 2015 observing that the order of the First Appellate Court does number suffer from any factual error or illegality and that numbersubstantial question of law arises in the Second Appeal.
Though the appellants claimed that they were number present before the trial companyrt in Suit No.591 of 1979, the order sheet dated 14.10.2011 passed by the trial companyrt in Suit No.591 of 1979 numberes the presence of both the parties in the trial companyrt on 14.10.2011 when the submissions of the parties regarding preliminary issues were companysidered and subsequent date i.e. 18.10.2011 was fixed for cross examination of PW 1 which according to the respondents, the appellants had knowledge about the same.
Some part of the suit property was also sold to appellant No.4 Mahesh by sale deed dated 17.05.1979.
In appeal by appellants, the First Appellate Court numbered that appellant No.3 Mohd.
In support of their pleadings, the plaintiffs had examined PW 1 Seraj Ahmmed, PW 2 Firoz Alam and PW 3 Salauddin as witnesses.
The said writ petition was dismissed on 20.02.2001 and order of interim stay dated 20.02.1985 was vacated.
After companysidering the submissions of appellants No.1 to 3, the First Appellate Court vide order dated 29.11.1985 allowed the appeal and remitted the matter back to the trial companyrt with a direction to rehear both the parties and decide the case on merits with companyts of Rs.50/ payable by the appellants and filing written statement on or before 03.01.1986.
Respondent No.1 Raziya Khanam since dead filed a Writ Petition C No.19550 of 1985 before the High Court against the order of the First Appellate Court in which interim order dated 20.02.1985 was passed by the High Court.
The High Court referred to the order sheet of the trial companyrt dated 14.10.2011 which numberes the presence of both the parties in the trial companyrt on 14.10.2011 and the respondents plaintiffs evidence in the form of affidavit and that the matter was fixed on 18.10.2011 for cross examination of PW 1 which clearly shows that the appellants had full knowledge about the proceedings in the Suit No.591 of 1979 and also about the dismissal of the Writ Petition C No.19550 of 1985.
The order sheet of the trial companyrt dated 30.05.2011 indicates the order dated 20.02.2001 passed in Writ Petition C No.19550 of 1985 was produced before the trial companyrt.
On 18.10.2011, the affidavit of the respondent plaintiff was filed and thereafter, in spite of several opportunities, the appellants defendants did number appear and the suit was decreed ex parte on 10.05.2012.
In the said judgment dated 10.05.2012, the trial companyrt has recorded that in spite of opportunities, the appellants defendants did number appear as seen from the following In the present case, the defendants have filed their objection at 17 A1 but they had remained absent at the time of adducing evidence.
The respondents resisted the suit companytending that respondent No.2 Hadisunnissa executed a Hibanama in favour of respondent No.1 Raziya Khanam since dead on 27.02.1979 of her properties and building situated in the village Nadva Khas and Revri Dihi and other villages on 27.02.1979 in the companysolidation office.
1 to 3 forged documents and executed a bainama of the suit property in their favour on 17.02.1979.
The defendants did number remain present for the cross examination of the aforementioned witnesses After referring to the order sheets dated 11.10.2011 and 18.10.2011 and the subsequent hearings in the Suit No.591 of 1979, the First Appellate Court as well as the High Court rightly recorded companycurrent findings that the appellants had full knowledge about the proceedings of the original Suit No.591 of 1979 and also about the vacation of stay order passed in Writ Petition C No.19550 of 1985.
The evidences on affidavit of these witnesses have been placed on records as the Document No.120A2, 128A2 and 129A2.
In the said application for companydonation of delay, the appellants averred that they came to know about the judgment of the trial companyrt dated 10.05.2012 for the first time on 06.05.2013 when they went to attend the hearing in another case before the Sub Divisional Magistrate and at that time, a companystable from Police Station Ghosi informed him about the said judgment dated 10.05.2012.
In the said writ petition, the appellants herein were neither served number they entered their appearance.
Therefore, on 09.11.2011, their opportunity of adducing evidence was closed and they were declared ex parte and ex parte proceeding companytinued.
Asid was a minor at the time when the original suit was filed and the proceeding for appointment of his legal guardian has number been companypleted in accordance with law and in such circumstances, it companyld number have been possible to have proper service upon appellant No.3 Mohd.
The first appellant Mohd.
The High Court numbered that the First Appellate Court recorded a finding that the appellants were number served with numberice and rightly set aside the decree dated 16.04.1981 and remanded the matter back to the trial companyrt.
According to the appellants, after receipt of such information, they companytacted their companynsel over telephone for inspection of case file and after inspection on 10.05.2013, they applied for companyy of the same which was received on 18.05.2013 and the appeal was filed on 22.05.2013 which caused delay of 349 days in filing the appeal.
BANUMATHI, J. Leave granted.
This appeal arises out of the order dated 15.10.2015 passed by the High Court of Judicature at Allahabad in Second Appeal No.819 of 2015 in and by which the High Court affirmed the order of the First Appellate Court dismissing the application filed under Section 5 of the Limitation Act and declining to companydone the delay of 349 days in filing the appeal.
