MAKHAN SINGH Vs. SAMPURAN SINGH

JUDGEMENT

(1.) This appeal arises out of the order of the Senior Subordinate Judge, Sirsa, with appellate powers, dated 16th of February, 1978, whereby he dismissed the application for restoration of the appeal which was dismissed in default on 25th of May, 1976.

(2.) An appeal bearing No. 160 of 1975 Makhan Singh V/s. Sampuran Singh etc. was pending in the Court of Senior Sub-Judge with enhanced appellate powers, at Hissar. Since a Court at Sirsa was created in the month of May, 1976, the case was ordered to be transferred to that Court vide order dated 17th of May, 1976. The parties, through their counsel, were directed to appear in the Court of the Senior Subordinate Judge at Sirsa on 25th of May. 1976. It appears that, on that date, the Respondents were present but the Appellants did not appear and consequently, the appeal was dismissed in default on that very day, i.e., 25th of May, 1976. Later on when the Appellants came to know of this, they moved an application dated 14th of June, 1976, for restoration of the appeal. This was contested by the Respondents and consequently, the Court framed the issues and evidence was led by both the parties. However, the learned Senior Subordinate Judge dismissed the application on the ground that the Appellants were present at Hissar en 17th of May, 1976, and there fore there was no sufficient cause to restore the appeal. Feeling aggrieved against this, the Appellants have filed this appeal in this Court.

(3.) After hearing the learned Counsel for the parties at a great length, I am of the opinion that this order of the Senior Subordinate Judge is liable to be set aside. According to the learned Senior Subordinate Judge, the application filed on 14th June. 1976, indicates that the Appellants were present at Hissar on 17th of May, 1976 and it is on that ground that he took the view that there was no sufficient cause for their non-appearance on the date fixed, i.e., 25th of May, 1976. But this fact is not borne out from the contents of the application which has been read in this Court by the learned Counsel for the Appellants. Moreover, admittedly, the presence of the Appellants is not mentioned in the order dated 17th of May, 1976. In case they were present, their presence should have been mentioned in the order it self Otherwise also, there appears to be no ground not to appear on 25th of May, 1976, in case the Appellants had the knowledge of this date As a matter of fact, they never knew the data for appearance in the Court of Senior Subordinate Judge at Sirsa and that is why they could not be present on the date fixed. The finding of the learned Senior Subordinate Judge is against the contents of the application. In any case, it has been amply proved that there was sufficient cause for restoring the appeal.