Wasiullah @ Bechu vs Mohd. Rashid

Ritu Raj Awasthi, J.—Heard learned counsel for the revisionists and perused the record.

This revision has been filed under Section 115 CPC challenging the order dated 30.11.2016 passed in Misc. Case No. 32 of 2011 (Wasiullah @ bechu and another v. Mohd. Rashid and others) whereby the application for condonation of delay in filing of appeal has been rejected consequently the appeal has also been dismissed.

As per the given facts, a suit for partition was filed by the respondent-Zahriul Haq which was registered as Regular Suit No. 196 of 1976 (Zahirul Haq v. Hafiz Mohd. Akram and another). The revisionists were impleaded as defendants in the said suit. As per the revisionists, they had not received any summon from the Trial Court and were not aware about the pendency of the said suit. The suit was decreed vide judgment and decree dated 06.10.1982. It is alleged that at the stage of execution the revisionists had come to know about the said judgment of the Trial Court and thereafter had put in appearance in the execution case no. 4 of 2005 and filed objection. It was thereafter that the appeal challenging the judgment and decree along with application for condonation of delay was flied before the District Judge, Ambedkar Nagar. The application for condonation of delay has been rejected by the learned Court below and the appeal has been dismissed, as such, the revisionists have filed the instant revision.

Learned counsel for the revisionists submits that the revisionists were not aware about the filing of the suit by the respondent and immediately after having the knowledge of the judgment and decree passed by the Trial Court have filed objection before the execution court as well as have filed the appeal before the first appellate court. It is submitted that a fraud was played on the revisionists as by impersonating their thumb impression a written statement on their behalf was filed before the Trial Court and a Lawyer in the name of Mr. Shiv Prasad Upadhyay was allegedly engaged to file the said written statement.

The contention is that the revisionists had not put their thumb impression on the written statement and the vakalatnama of Mr. Shiv Prasad Upadhyay and it was a fraud played on them.

It is further submitted that the Trial Court has not properly considered the application for condonation of delay and has rejected the same in most arbitrary and illegal manner.

I have considered the submissions made by learned counsel for revisionists and gone through the record.

The revisionists in the application for condonation of delay filed along with appeal filed by them, copy of which are on record, have nowhere pleaded that a fraud was played on them and they had not filed the alleged written statement which was alleged to have been filed on their behalf. They have also not pleaded that they had not engaged Mr. Shiv Prasad Upadhyay, Advocate to file the said written statement on their behalf and contest the case. It is only pleaded that no summon was received by them and they had not filed any written statement. It is also pleaded that there is no order to proceed ex-parte by the Trial Court.

The alleged written statement as well as copy of vakalatnama of Mr. Shiv Prasad Upadhyay are annexed with the instant revision, as such, it is but evident that a written statement on behalf of the revisionists was filed before the Trial Court by engaging Mr. Shiv Prasad Upadhyay, Advocate.

In case it was the case of the revisionists that a fraud has been played on them, they were required to plead the same before the first appellate court while filing the appeal and moving application for condonation of delay. Copy of the application for condonation of delay which was said to have been filed at the time of filing of the appeal is on record. It does not indicate that any such plea was taken by the revisionists.

The learned Court below in the impugned order has rightly observed that the appeal has been filed with a delay of approximately nine years and two months and there is no sufficient cause shown in the application for condonation of delay. The perusal of the documents 19Ga1/1 clearly indicates that written statement on behalf of revisionist/appellants was filed before the Trial Court, as such, it is wrong to say that the revisionists/appellants had no knowledge about the partition suit filed against them.

The learned Court below has rightly rejected the application for condonation of delay in filing of the appeal by the revisionists.

I do not find any infirmity of illegality in the order impugned.

The revision being devoid of merit is dismissed at the admission stage.