Inspite of sufficient service no one has appeared on behalf of contesting respondent no.1.
Heard learned counsel for the petitioner. Respondent no.1 is step sister of Laxman, petitioner's father. She filed a suit against Laxman in the form of Original suit no.193 of 1995 for possession. The suit was decreed on 7.4.1993 by Additional Munsif (IV), Bareilly. Her case was that Ram Chandra and Smt. Chimma mother of Ram Chandra sold the house in dispute to her and in the sale deed Laxman was a witness. It was stated by Laxman that he was real brother of Ram Chandra and respondent no.1 was their sister (step sister) and as the house was ancestral hence he (Laxman) had also share therein. It was further stated by Laxman that the house was left behind by Ramman father of Laxman, Ram Chandra and respondent no.1 ? Smt. Dhan Dei and that the house was mortgaged to a third party who was pressing for payment hence the house was sold to respondent no.1 Dhan Dei to clear the dues of mortgagee.
Against judgment and decree dated 7.4.1993 Laxman filed civil appeal no.87 of 1993. During pendency of appeal Laxman died on 12.9.1993. However, the appeal was dismissed for non-prosecution on 5.7.1994 by VIIth Additional District Judge, Bareilly, as no steps to serve the respondent had been taken. Petitioner filed restoration application alongwith delay condonation application (Misc. case no. 2 of 1999) after four and half years i.e. on 28.1.1999. Through the impugned order dated 27.8.2002 Additional District Judge, Court No.VII, Bareilly dismissed the delay condonation application which has been challenged through this writ petition.
Before the Lower appellate court learned counsel for Late Shri Laxman had stated on 6.10.1993 that appellant had died.
The petitioner who is son of Laxman stated that he came to know about the decree and dismissal of the appeal when notice of execution was served upon him.
Lower appellate court held that on the order sheet there were signatures of petitioner on 12.7.1993 and 24.9.1993 hence he had knowledge of the pendency of appeal.
When the information had been given about the death of appellant and no substitution application had been filed, appeal should have been dismissed as abated instead of for non-prosecution. However, this will not make much difference.
In this writ petition no interim order was granted.
In view of following peculiar facts and circumstances of the case I am inclined to allow the writ petition and consequently delay condonation and restoration applications filed before lower appellate court on certain conditions;
(1) Parties are very close relations.
(2) The allegation of Laxman petitioner's father was that the house in dispute belonged to Ramman, his father.
(3) As there was no stay order in this writ petition hence respondent no.1 must have taken possession of the house in dispute .
Accordingly, writ petition is allowed. Impugned order is set aside. Delay condonation application as well as restoration application filed by the petitioner before the lower appellate court are allowed on the following conditions:
(a) Cost of Rs.5,000/- is deposited before the lower appellate court on 1.8.2011 alongwith certified copy of this judgment requisite substitution application and steps to serve respondent in appeal. (Cost shall be paid to respondent in appeal as soon as she appears)
(b) Stay application in the appeal is rejected and until decision of appeal petitioner is restrained from filing any stay/injunction application seeking stay of execution of the decree in appeal.
(c) In case in the appeal respondent no.1 is not able to prove his title over the entire house then petitioner would not question her right and title over the house in dispute to the extent of 50%. (For this learned counsel for the petitioner has agreed on the suggestion of the court. It was made clear that only on such agreement writ petition would be allowed.) Writ petition is accordingly allowed as above.
Order Date :- 17.5.2011 RS