ATAR SINGH Vs. LOTAN SINGH

JUDGEMENT

(1.) The plaintiff-respondent had filed a suit for injunction with the prayer to restrain the defendant-appellants from alienating the land in dispute. The trial Court had granted an injunction. Against the same the defendants had preferred an appeal before the lower appellate Court. On the particular day when the appeal was called out for hearing, the appellants were not present and accordingly the appeal was dismissed for nonprosecution. Thereafter a restoration application was filed by the defendant-appellants, which has been dismissed by the lower appellate Court by the impugned order dated 17/11/1990. Aggrieved, the defendant-appellants have preferred this First Appeal From Order in this Court.

(2.) I have heard learned Counsel for the parties and have gone through the impugned order passed by the court below. By the said order the lower appellate Court has dismissed the restoration application both on the grounds that the affidavit which was filed by the father of the appellants as pairokar was not tenable in law in the absence of power of attorney and that the appellants had personally signed the restoration application. On merits, the lower appellate Court also found that since the appeal was dismissed at about 12.15 p.m. and the grounds taken in the restoration application that when the case was called out at about 12.30 p.m., Sri Lokman Singh, the said pairokar had gone to fetch the counsel, was not acceptable to the lower appellate Court on the ground that at the exact time when the case was called out, according to the lower appellate Court, the said pairokar was not even present in the court. The learned Counsel appearing for the plaintiff-respondent, submitted that the restoration aplication filed by the defendant-appellants was not maintainable inasmuch as the law contemplates the presence of the appellant and not the pairokar, therefore, there was no sufficient cause for restoring the appeal.

(3.) The second submission made by the learned Counsel for the plaintiff-respondent was that the presence of the father will not in law amount to the presence of the appellants. even if the father might be the pairokar of the case.