AMAR SINGH Vs. KISHAN SINGH

JUDGEMENT

(1.) The facts leading up to this reference made by the learned Judge in Chamber to a Division Bench may shortly be stated as follows:

(2.) Amar Singh Defendant major and the Gurdev Singh and Sukhdev Singh minors Defendants under the guardianship of their grandmother Mst. Bhagwan Kaur preferred an appeal through Mr. Asad Ali, Advocate, to the Court of District Judge Sunam which was fixed for hearing on 13th Bhadon 2004. On that day, however, neither to Appellants nor their counsel made their appearance and the appeal was dismissed in default the same day. On 6th Maghar 2004 Amar Singh one of the Appellants made an application with the object of being informed as to what orders were passed in the appeal fixed for 13th Bhadon 2004. It was alleged inter alia in that application that he was not able to attend on the fixed date on account of communal disturbances in the Ilaqa and the dislocation of communications and that he was not aware as to what orders were passed on 13th Bhadon 2004 in his appeal. The report made on this application by the Ahalmad of the Court revealed that the appeal was dismissed for default of appearance of the Appellants on the 13th Bhadon 2004 whereupon the presiding officer issued a notice to the Respondents for their attendance. But meanwhile Amar Singh made another regular application supported by an affidavit wherein it was stated that he had come to know of the dismissal of his appeal on that day and as he was prevented from attending the Court on account of communal disturbances the appeal should be restored and heard on merits. The Petitioner was put to proof and after recording necessary evidence adduced by both aides the learned District Judge dismissed the application for restoration on 6-12-2004. The Petitioner felt aggrieved and preferred an appeal in this Court which was heard by a learned Judge in Chambers but in view of the fact that the contentions raised in the appeal were considered important ones involving a consideration of law as laid down in 3 Patiala Law Reports 218, the learned Judges referred this case to a larger Bench as stated above for the disposal of the appeal as well as for the adjudication of the question of setting aside the dismissal order suo motu on the revision side.

(3.) The arguments were heard on the last hearing at great length but we came to the conclusion that without the perusal of the original order whereby the appeal was dismissed foe default of appearance it was not safe to dispose of the appeal. The file of civil Appeal No. 2000 of 2002 was accordingly sent for and the same has since been received. The counsel were, therefore, allowed to address the Court once again to day in the light of the record sent for.