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Judgment
Sibghat Ullah Khan, J.—This application has been filed for recall of my judgment and order dated 24.8.2005 through which writ petition was dismissed. The writ petition was directed against order passed by the revisional court refusing to return the plaint for filing before regular court u/s 23 of Provincial Small Causes Court Act. I found that there was no error in the judgment and order passed by the revisional court which had directed for stay of the proceedings of S.C.C. Suit No. 66 of 1991 pending before Additional J.S.C.C., Agra) until decision of the title suit but refused to direct return of the plaint for filing before regular court. In fact in the application filed before the trial court/Additional J.S.C.C. only prayer for stay of the proceedings of the suit has been made but the trial court had directed for return of plaint. The said order had been set aside by the revisional court. Second paragraph of my judgment is quoted below:
Learned Counsel for the tenant Petitioner on enquiry from the court has stated that the title suit has finally been decided in favour of Respondent. In view of this now there is no need even to stay further proceedings of S.C.C. Suit No. 66 of 1991.
Thereafter the suit was decided against the tenant-Petitioner on 9.10.2007 by the J.S.C.C., Agra. Through my judgment dated 24.8.2005 I had directed the office to send copy of the same to Additional J.S.C.C., Agra for being kept in the suit. In its judgment dated 9.10.2007 the J.S.C.C., Agra mentioned about my order dated 24.8.2005. Thereafter the J.S.C.C. under issue No. 1 and 4 observed that the tenant had stated that against the judgment and decree dated 19.12.1997 passed in appeal by the lower appellate court (arising out of title suit between the parties), some Second appeal was pending in the High Court however, no document in regard thereto was filed and the said fact had been stated only orally.
The argument of the learned Counsel for the applicant in this Recall application that the writ petition was not filed by the tenant is utterly absurd hence rejected. There was no sense or occasion for any one else to file the writ petition. In any case applicant was aware of the judgment as its copy had been sent to the trial court and trial court in its order dated 9.10.2007 had referred to the said judgment still this recall application was filed on 21.1.2011.
Against judgment and decree dated 9.10.2007 Petitioner has filed a revision which is pending in the form of SCC Revision No. 88 of 2007 before Additional District Judge, Court No. 1, Agra. In the said revision Petitioner filed application under Order 41 Rule 27 CPC for adducing additional evidence. One of the documents sought to be adduced as additional evidence was copy of stay order of the High Court dated 21.4.1998 passed in the second appeal being second appeal No. 468 of 1998 directed against judgment and decree dated 19.12.1997 passed in civil appeal No. 58 of 1996 (referred to in the judgment of JSCC dated 9.10.2007). The application for adducing the additional evidence was rejected on 10.12.2009 against which Petitioner filed writ petition No. 5642 of 2010 which has been dismissed on 23.2.2010. Thereafter, this Recall application was filed on 21.2.2011 i.e. after about eleven months therefrom.
I have perused the file of Second appeal No. 468 of 1998. The said second appeal is still pending and stay order dated 21.4.1998 directing the parties to maintain status quo as regards nature, possession and character of the property in dispute is still continuing. It is therefore, correct that the learned Counsel for the tenant-Petitioner who argued this writ petition on 24.8.2005 was not aware of the pendency of the Second appeal hence he stated that the title suit had finally been decided. However, on this ground alone the said judgment cannot be recalled for the following reasons. Firstly, the Recall application is highly belated. Secondly an utterly false allegation has been made that the writ petition was not filed by the Petitioner and some one else had filed the writ petition on his behalf. Thirdly, if it had been stated before me at the time when I decided the writ petition on 24.5.2008 that the second appeal was pending then I would have stayed the proceedings of the suit. However, now the suit itself has been decided and matter is pending in revision.
Accordingly, this recall application is rejected.
Similar recall application bearing no. 27064 of 2011 has been rejected today. It is not clear that why two recall applications were filed. In any case this recall application is also rejected for the same reason for which similar recall application has been rejected today.