KANSHI RAM Vs. HARYANA STATE

JUDGEMENT

(1.) THIS revision is directed against order dated 8.12.1980 vide which learned District Judge, Bhiwani dismissed Civil Appeal No. 24 of 1979 filed by the petitioner and confirmed order dated 18.7.1979 passed by Sub Judge, Ist Class, Bhiwani dismissing the application made by him for restoration of the suit which had been dismissed in default.

(2.) A perusal of the records shows that the petitioner had filed a suit for recovery of Rs. 9300/-. After the parties concluded their evidence, the case was adjourned by the learned Sub Judge, Ist Class. Bhiwani on 19 different dates between 21.9.1977 and 8.5.1978. On 16.5.1978, the suit was dismissed in default on account of non-appearance of the petitioner and his advocate. The application for restoration filed by the petitioner was dismissed by learned Sub Judge, Ist Class on 18.7.1979 by observing that he had not produced cogent evidence to show that there was sufficient cause for his absence on the date of hearing. The learned District Judge confirmed the order of the trial court and dismissed the appeal filed by the petitioner against order dated 18.7.1979 by observing that he had not examined any Doctor or Vaid to prove that he was ailing and the counsel who was representing him in the trial Court did not step in the witness box to prove that he had gone out of station.

(3.) IN my opinion, the courts below committed a material irregularity in the exercise of their jurisdiction to decide the application for restoration filed on behalf of the petitioner. It is an undisputed position that after recording the evidence of the parties, the trial Court adjourned the case on 19 different dates and dismissed the suit on 16.5.1978 in default because on that particular day, his Counsel was absent. In the restoration application, the petitioner had averred that he could not attend the court due to illness and his advocate had gone to Bhiwani. He appeared in the witness box and stated that he was suffering from dysentery and, therefore, he could not appear in the Court. He also produced the medical certificate as mark A to prove the factum of his illness. The learned Sub Judge discarded his statement only on the ground that he had not examined any other witness and did not produce the medical certificate. The learned District Judge also rejected the explanation of the petitioner by observing that he had neither examined any Doctor or Vaid under whose treatment he was nor did he examine any other witness to corroborate his testimony and the advocate who represented him in the trial Court has also not stepped into the witness box to prove that he had gone out of station. In my view, both the courts committed grave illegally by rejecting the explanation given by the petitioner for his absence on 16.5.1978. The learned Sub Judge did not even bother to read the statement of the petitioner, a perusal of which shows that he had not only deposed about his illness but had also produced medical certificate issued by Dr. M.C. Sharma (Physician and Surgeon) who was practising at Narnaul. No doubt, the petitioner did not examine any Doctor or Vaid to support his assertion regarding illness but this alone could not be made a ground for rejecting the explanation.