PRITAM CHAND Vs. SHAMSHER SINGH

JUDGEMENT

(1.) AFTER hearing the learned counsel for the parties, I am of the view that this revision deserves to succeed. In the suit some of the defendants were served who in spite of service did not appear and were proceeded ex parte. It was ordered that the remaining defendants should be served. The case was taken up on 25-5-1982 when none was present and the suit was dismissed in default under O. 9, R. 3 of the Code of Civil Procedure. On 8-6-1982, the plaintiff moved an application for restoration of the suit and the justification given was that the counsel by mistake noted 29-5-1982 as the date of hearing. The trial Court disallowed the application for two primary reasons: (1) that neither the counsel nor his clerk were produced to prove that they had noted 29-5-1982 as the date of hearing instead of 25-5-1982 and (2) that in case they had noted wrong date, they would have come to know on 29-5-1982 that the case had already been dismissed in default and would have filed an application for restoration of the suit immediately and would not have waited till 8-6-1982.

(2.) DEALING with the second point first, the limitation provided for seeking restoration of the suit is thirty days and, therefore, the application could be filed within thirty days and that is what has been done in this case. It is true that the application could be filed soon thereafter also but that would not justify the inference that the lawyer or his clerk had not noted down a wrong date.

(3.) ADVERTING to the first point, there was unrebutted statement of the plaintiff that his counsel had noted 29-5-1982 as the date of hearing instead of 25-5-1982 and in support of this produced the envelope of his counsel which contained the proof as on it the dates are noted wherein 29-5-1982 is noted and 25-5-1982 is not noted. This envelope is Exhibit P. 1 on the record.