Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 8793 of 2018 Petitioner :- Savitri Devi Respondent :- Virendra Singh And 2 Others Counsel for Petitioner :- Brij Kishore Pandey
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner.
The present petition is directed against the order dated 14.9.2018 passed by the First Appellate Court in Misc Case No. 203 of 2017 filed under Section 5 of the Limitation Act, application no. 10-Ga filed in appeal against the judgment and decree dated 8.11.2013 passed in original suit no. 161 of 2007.
It is admitted to the petitioner that the aforesaid suit was decreed ex-parte vide judgment and order dated 8.11.2013. The First appeal had been filed by the defendant with the categorical assertion that he had no knowledge about the said suit proceedings.
The said suit was contested by the plaintiff/petitioner with the assertion that a Vakalatnama (paper no. 29Ga) was filed on behalf of two defendants namely Sri Virendra Singh and Sri Chandrasen Pandey. After death of Sri Chandrasen Pandey, a Vakalatnama (paper no. 89Ga) was filed on behalf his heirs and legal representatives. The applicants, however, had denied their signatures on the Vakalatnama and submitted that at no point of time, they had received any summon or notice and never authorized an Advocate to file their Vakalatnama.
To this submission, the Court below has recorded a categorical finding from the perusal of the record of the original suit that no application, apart from two Vakalatnama namely paper no. 29Ga and 89Ga filed on behalf of the defendants, was on record of the trial court. The record does not indicate that any summon or notice had been sent to the defendants or served upon them. In absence of any such record, there was no occasion to reject the contention of the applicants that they had no knowledge about the suit and Vakalatnama was not executed by them. This finding of fact returned on the basis of the record of the trial court is not disputed in the present petition.
Only submission of learned counsel for the petitioner is that since the signatures on the Vakalatnama could not be denied by the defendants, there was no occasion for the Court below to allow the application under Section 5 of the Code of Civil Procedure so as to condone the delay in filing the appeal.
This submission of learned counsel for the petitioner does not deserve merits, inasmuch as, the findings returned by the Court below with regard to the fact that no notice being served upon the defendants, has not been challenged.
Even otherwise, the First Appellate Court in its own wisdom has allowed the delay condonation application having been satisfied with the explanation offered by the applicants.
No interference is, therefore, required in exercise of powers under Article 227 of the Constitution of India. The present petition is, accordingly, dismissed.
Order Date :- 27.11.2018 Brijesh