SARPAL SINGH Vs. MALKIAT SINGH

JUDGEMENT

(1.) THIS petition is directed against the order of Additional Senior Sub -Judge, Moga, dated 1.9.1993, whereby he declined to restore the suit filed by the plaintiff -petitioner which was dismissed in default vide orders, dated 1. 10. 1988, on the ground that the application filed under Order 9, Rule 8 of the Code of Civil Procedure was beyond limitation and further that the petitioner and his counsel had been negligent in the prosecution of their case.

(2.) THE facts of the case are that the plaintiff -petitioner filed a suit for recovery of Rs. 23,120/ - against the respondent. A reply was filed by the respondent and the case was fixed for evidence of the petitioner on 2.8.1987, 16.12.1987, 7.3.1988, 9.6.1988., 26.8.1988 and finally on 1.10.1988. On all these dates, the plaintiff did not produce his evidence and on the last date i.e. 1.10.1988, neither the plaintiff nor his counsel appeared with the result that the impugned order was made. In the application for restoration filed, under Order 9, Rule 8 of the Code of Civil Procedure, the positive -stand taken by the petitioner was that on 1. 10. 1988, i.e. on the date of the impugned order he was abroad, and was, therefore, not in a position to prosecute the case. The trial Court after recording evidence came to the conclusion that the fact that the petitioner had gone abroad had not been proved but the Court nevertheless found that as the petitioner had been given many opportunities to produce his evidence and had not done so he was not interested in pursuing the case and further that the application for setting aside the ex -parte proceedings having been filed on 9.2.1989 was barred by limitation which was 30 days from the passing of the impugned order. Aggrieved thereby the present petition has been filed.

(3.) AS against this, Mr. H.S. Bhullar, learned counsel for the respondent, has urged that the fact that the application had been filed beyond 30 days was an admitted fact and Section 122 of the Limitation Act specified that any application filed beyond that period would be barred by limitation. He has urged that this objection was taken by the respondent in reply to the application and despite this no application for condonation of delay had been filed by the applicant in the trial Court or in the present proceedings. Mr. Bhullar has also urged that the observations made in the cited case Bishnu Bhagwan and Others (Supra) pertain to a situation where the application for restoration had been filed within the time period of 30 days and in that situation it was thought appropriate that the case ought to have been decided on its merits.