MAHESH CHAND VYAS Vs. YOGENDRA VARSHNEY

JUDGEMENT

(1.) THIS appeal is directed against an order dated 27th September, 1980 passed by the learned Civil Judge, Aligarh, rejecting the applications purported to have been made by the Appellant under Order 41 Rule 19 of the Code of Civil Procedure (hereinafter referred to as the Code) and Section 5 of Limitation Act.

(2.) A civil appeal No. 210 of 1974 was before the learned Civil Judge and that appeal was fixed for hearing on 6th March, 1978. On that date the learned Judge dismissed the appeal in default of the appearance of the Appellant. On 3rd July, 1978 an application for restoring the appeal to its original number along with an application under Section 5 of the Limitation Act was made. The orders passed on these applications are the subject matter of the instant appeal.

(3.) IF the version of the Appellant that he was ill on 6th March, 1978, is accepted and if his version that the illness continued till 6th June, 1978, too is accepted then the question of the application for restoration having been filed beyond time does not arise. Admittedly, the application was filed on 3rd July, 1978, on the date when the civil court reopened after the Summer Vacations . I have already taken the view that the court below has not given any reason for rejecting the certificate of the vaiyda. this certificate corroborates the case of the appellant that he fell ill on 2nd March , 1978 and continued to be so till 6th June, 1978. The court below therefore, committed an error in rejecting both the applications of the appellant .