AMAR SINGH Vs. LABH SINGH

JUDGEMENT

(1.) DEFENDANT Amar Singh has filed this appeal against order of the appellate Court dated September 22, 1990 vide which application for restoration of the appeal, dismissed in default, was rejected.

(2.) LABH Singh plaintiff filed a suit for recovery of Rs. 5000/ and interest thereon amounting to Rs. 600/- on the basis of refund of earnest money. He also claimed future interest. The trial Court on April 25, 1985 dismissed the suit. The plaintiff filed an appeal which was allowed on November 7, 1986. The appellate Court decreed the suit for the recovery of Rs. 5600/- only i. e, future interest was not allowed. Since this judgment was delivered ex-parte, defendant Amar Singh moved an application for setting aside the exparte decree This application of Amar Singh was allowed by the appellate Court on April 9, 1987. The ex parte decree was set aside subject to payment of Rs. 100/- as costs. The appeal was adjourned to May 7, 1987 On that day the costs were not paid or offered. Still the appellate court adjourned the case to May 14, 1987. Neither costs were paid by Amar Singh nor he was represented on that day. The application thus stood dismissed with the result that decree passed on November 7, 1986 stood restored. Another application was filed for setting aside ex-parte order aforesaid. The application is dated May 27, 1987 on the ground that Amar Singh was ill and could not appear and secondly his counsel also could not appear as he was out of station. This application was contested by the plaintiff Labh Singh and the following issue arising out of the pleadings was framed :-- (1) Whether there are sufficient grounds to restore the application ? OPA.

(3.) ONLY Amar Singh appeared as his own witness as AW-1 and deposed about his illness from May 7, 1987 to May 20, 1987. He is alleged to have taken treatment from Sher Chand Hakeem who was not produced as a witness. On the other hand RW-1 Labh Singh appeared and controverted the allegations of the defendant. The appellate Court decided the issue against Amar Singh and dismissed the application as no sufficient cause was shown.