M. BROWN Vs. MABEES BOND

JUDGEMENT

(1.) Aggrieved by the order of the Trial Court rejecting plaintiff/appellants application for restoration under order 9 Rule 9 C.P.C. the plaintiff/appellant has approached this Court through the above mentioned first appeal from order.

(2.) In the application for recalling the order, dated 16.12.1978, the plaintiff had stated that she was wrongly informed 26.12.78, the date fixed in the case, therefore, she failed to appear on 16.12.78 and the case had been dismissed in default on that day.

(3.) The claim of the plaintiff/appellant has been contested by the defendant/respondent. Through the impugned order the trial court has dismissed the plaintiffs application on the ground that the plaintiff has not been able to substantiate her assertions about the wrong date given to her. The reason given by the Trial Court is that neither the diary, nor the affidavit of the clerk of the plaintiff has been filed to substantiate the claim of the plaintiff/appellant. The other reason given by the Trial Court is that the application for recalling the order was moved on 6.1.1979, hence the conduct of the plaintiff/appellant did not warrant to justify the truth of the allegations made by her and because of the conduct of the plaintiff/appellant the Trial Court has disbelieved the theory put forward by the plaintiff/appellant and has rejected the application for recalling the order dated 16.12.1978.