Raj Deo vs State of U.P. and Others

Hon''ble Pankaj Mithal, J.—Heard Learned Counsel for the petitioner and Sri Juned Alam, Learned Counsel for respondent No.5 and 6/1 to 6/4.

A declaratory suit was decreed on 21.10.1997 on the basis of a compromise dated 1.4.1992. The contesting respondents applied for setting aside the compromise decree vide application dated 8.3.2007 along with an application for condoning the delay in moving the aforesaid application. The delay in filing the above application has been condoned by the impugned order dated 15.4.2011 and the petitioner''s revision against the same has been dismissed on 1.9.2011. The above two orders dated 1.9.2011 and 15.4.2011 are under challenge in the present writ petition.

The petitioner has also filed a revision before the Board of Revenue against the order dated 1.9.2011.

Learned counsel for the petitioner states that the petitioner has already moved an application before the Board of Revenue for withdrawing the aforesaid revision as second revision is not maintainable but no orders on the said application have been passed as Members are not available to deal with the said application.

I have heard Learned Counsel for the parties on merits of the orders dated 15.3.2011 and 1.9.2011.

It appears that the contesting respondents have denied knowledge of the compromise decree dated 21.10.1997 and have contended that they came to know of the aforesaid decree only on 8.3.2007. It has further been stated that no compromise was actually entered into between the parties, as alleged, and therefore, the compromise decree is liable to be set-aside.

The Court below in condoning the delay in filing the application for setting aside the ex-parte decree has recorded a finding that the contesting respondents appears to have acquired knowledge of the compromise decree on 8.3.2007. The application for setting aside the ex-parte decree was filed immediately and sufficient cause has been shown for condoning the delay.

The discretion exercised by the court has been approved in revision.

It is settled law that discretion ought to be exercised in favour of hearing the parties for advancing justice and not to throttle hearing. It is equally settled that discretion exercised one way or the other should not be lightly interfered with by higher court unless the exercise of discretion is shown to be palpably wrong and against the judicial principles which is not the position in the present case.

Therefore, once a discretion in the matter of condonation of delay has been exercised and the delay has been condoned coupled with the fact that the revisional court has declined to interfere with the same no case for interference by this Court under Article 226 of the Constitution of India is made out.

In view of the above, the petition is devoid of merits and is dismissed with the direction to the Up-Ziladhikari i.e. respondent No. to consider and decide the application of the contesting respondents for setting aside the ex-parte decree in accordance with law, as expeditiously as possible, preferably within a period of four months from the date of production of the certified copy of this order.