CHANDRIKA Vs. OM PRAKASH

JUDGEMENT

(1.) THIS second appeal has been filed by Chandrika against the order dated 29-4-94 passed by learned Additional Commissioner, Varanasi dismissing the appeal and confirming the order dated 18-4-90 passed by ASDO Bansdih dismissing restoration application in case No. 123 under Section 229-B of the UPZA and LR Act.

(2.) BRIEFLY the facts giving arise to the present second appeal are that Ram Chandra and others filed a suit against Chandrika and other. The suit was decreed ex parte on 29-4-85. On 5- 7-85 application for setting aside the ex parte decree was moved on the ground that notice had been served and the applicants had no knowledge of the ex parte decree. It was asserted that when they heard a rumour in the village on 2-7-85 about the decision of the case in favour of the other side they rushed to file the restoration application. They filed an affidavit and an application under Section 5 of the Indian Limitation Act. The trial Court found that the applicants for restoration had come to know about the case earlier and that the restoration application was beyond time. It rejected the application. On appeal being filed, the learned Additional Commissioner dismissed the same. Hence, the present second appeal.

(3.) IN this case the main point for determination is whether the applicant Chandrika had knowledge of the suit and of the ex parte decree. So as he could be expected to have filed the restoration for setting aside the ex parte decree within time. A perusal of the original file reveals that only two full forms of summons are on the record. A part of summon is no doubt annexed between the two summons but it cannot be presumed that this was a summon issued to defendant No. 1 Chandrika and had been served upon him. The trial Court acted arbitrarily in presuming that the torn piece of the summon annexed in the file related to defendant No. 1. It also went on presumption in presuming that the summons had been served. The learned trial Court was also not correct in observing that in the order dated 29-4-85 the trial Court had mentioned that summons had been served. The observations made in the order dated 29-4-85 was a causal observation and could not be made the basis for throwing out the restoration application. The defendant Chandrika had supported his restoration application with an affidavit. The grounds stated in the application appear to be satisfactory. The ex parte decree was passed on 29-4-85 and application for restoration was moved on 5-7-1985. Thus there was a delay of about one month and eight days. The applicant had furnished sufficient explanation for the delay.