Som Nath Honda vs Ravindra Shankar Dixit

Sibghat Ullah Khan, J.—Heard learned counsel for the parties. This is defendant''s writ petition. Plaintiff-respondent filed O.S. No. 1708 of 1998 against the petitioner which was dismissed in default on 20.8.2001. However, in the year 1999 defendant-petitioner had filed counter claim in the suit. Three applications were filed by the plaintiff for setting aside the order dated 20.8.2001, however all the applications were dismissed in default. Learned counsel for the petitioner states that last restoration application filed by the plaintiff-respondent was dismissed in default on 24.1.2006 and thereafter plaintiff-respondent did not file any restoration application. Thereafter trial court/Additional Civil Judge (S.D.)/A.C.M.M.. Court No. 9 Kanpur Nagar allowed the counter claim of the defendant-petitioner on 11.12.2007. In para 5 of the said order in one sentence it is mentioned that the learned Judge heard the arguments of the learned counsel for the defendant ex parte and perused the file. Thereafter in one sentence it is mentioned that defendant No. 1 has been fully successful in proving the allegations made in the counter claim accordingly counter claim was allowed. There is no mention in the impugned order that any notice was issued to the plaintiff of the dates fixed in the counter claim after dismissal of the suit in default. Moreover, there is no finding as to why allegation made in the counter claim is correct. Against the said order plaintiff-respondent filed restoration application which was rejected. Thereafter revision was filed which was allowed and matter was remanded. After remand of the matter, trial court through order dated 14.10.2011 only allowed delay in filing the restoration application. Against that order petitioner filed Civil Revision No. 40 of 2012 which was dismissed on 30.4.2012 by Additional District Judge, Court No. 23, Kanpur Nagar hence this writ petition.

I do not find least error in the impugned order. The restoration application has not yet been decided only delay has been condoned. I do not approve the approach of the trial court in deciding only delay condonation application and fixing date for hearing restoration application. Whenever restoration application is filed with delay condonation application, both must simultaneously be heard and decided by the same order.

Accordingly, writ petition is dismissed.