SRI BAL MUKUND Vs. HAR

JUDGEMENT

(1.) N. L. Ganguly, J. This revision is directed against the order passed by the learned Civil Judge, Etah, refusing to allow the application seeking amendment in the restoration application filed by the plaintiff-applicant. The revision was presented and the court was pleased to direct the applicant to serve the respondents in the case, so that the revision itself may be finally disposed of at the admission stage itself. The respondents filed their appearance and counter-affidavit to the said application. The parties have agreed and consented that the revision itself may be finally heard and decided.

(2.) THE applicant/plaintiff had filed a suit for specific performance against the opposite parties, which was dismissed in default on 7. 8. 86. On 8. 8. 86, an application for restoration of the aforesaid suit was filed with an affidavit. In the affidavit and application, it was stated that on 6. 8. 86, the applicant had fallen ill of dysentery and could not appear before the court on the said date nor sent witnesses or sent information about his illness to his counsel. In the circumstances, the suit was dismissed for default of the applicant. THE applicant's counsel had also not been able to attend the court as he was busy in other crises. After recovery - from the ailments on 8. 8. 86, the applicant had filed an application for restoration of the suit. It is in the said application in which the plaintiff/applicant seeks amendment by introducing certain facts, namely, "on the said date when the suit was dismissed for default, the applicant had come to the contact In spite of his beign ill and had railed his witnesses, also THE applicant could not contract his lawyer in spite of his attempt to find him out from various court-rooms. He learnt that his counsel was busy in number of other cases. As such, he had got the cases adjourned for beign taken up after lunch. THE applicant after lunch had gone to call his lawyer without informing the court. In the mean time, the case was called. THE applicant remained with his lawyer as he had not till then get freed. When the applicant along with his lawyer reached the court, he learnt that his suit had been dismissed. THE application for amendment with aforesaid new facts was opposed by the defendants It was objected that by the proposed amendments, the -plain-'' tiff was seeking to set up a different case entirely than the case set up in the original application for restoration. THE defendants urged that a valuable right had accrued in his favour. In case the amendment sought was allowed the same would be contrary to provisions of Order 6, Rule 17, C. P. C.

(3.) AFTER hearing the counsel for the parties and examining the record. I am of the opinion that this revision calls for no interference and is liable to be rejected.