SIRAJ MAQBOOL Vs. HAROLD PINTO

JUDGEMENT

(1.) This Writ Petition was before me on 18th Oct., 1985 when 1 directed the Advocate for the Petitioner to prepare a paper book which would enable me to understand whether the order dated 27ih April, 1981 passed by the then Principal Judge of the City Civil Court, which order is impugned in the Writ Petition, is proper or not. The necessary paper book is now available.

(2.) A few facts may be stated. The Respondent filed a summary suit for recovery of Rs. 12,000.00 on the basis of the promissory note dated 18th July, 1977. As the appearance was filed on behalf of the Defendant the Plaintiff took out a Summons for Judgment and the learned Judge hearing the same passed a conditional order on 19th April, 1979 giving leave to defend to the Defendant on his depositing a sum of Rs. 5,000.00 within 8 weeks from the date of the order. Being aggrieved by the said order, according to the Petitioners affidavit dated 10th April, 1980 in support of the subsequent notice of motion taken out, the Petitioner claims to have filed an Appeal. The number 6f the Appeal is given as 1253 of 1979. It may be mentioned in passing that such Appeal is not competent since an order of deposit on the summons for judgment is not one of the orders made appealable under Order 43 of the Code of Civil Procedure.

(3.) Thereafter in the Appeal certain orders have been taken for submitting of documents to the Governments hand-writing expert for his report presumably on the question whether the signature on the promissory note was that of the Defendant (Petitioner before me) or not. It would appear that in due course the report was received but in the meantime the Petitioners Appeal got dismissed in the High Court. The said Affidavit from which I have gathered the facts does not indicate why it was dismissed viz. whether it was for default of appearance or whether it was on the footing that the Appeal did not lie. Since an application for restoration was made the presumption may be that it was dismissed for default. 1 cannot give the correct position since the Petitioners Advocate has chosen to remain away from the Court today.