BALDEV RAJ Vs. HARBANS SINGH @ HARWARD SINGH

JUDGEMENT

(1.) THE challenge in the present revision petition is to the order passed by the learned Trial Court dated 25.7.2003 dismissing the application for restoration of the suit for possession and the order in appeal dated 27.9.2006, passed by the learned First Appellate Court.

(2.) THE plaintiff -petitioner filed a suit for possession of the property situated at Mochpura Bazar, Ludhiana. The said suit was dismissed in default on 23.11.1993. An application for restoration of the suit was filed on 20.5.1994 supported by an affidavit. It was pointed out in the said application that the defendant has not filed the written statement for many dates, which created a doubt in the mind of the plaintiff that he would not get justice from the learned trial Court. The petitioner alleged that he moved a transfer petition before the learned District Judge on 25.10.1993. The petitioner is illiterate person. Notice of the said application was issued to the respondent. The petitioner remained under the bonafide belief that the Court file has been summoned. He was informed by the peon of the Court that he" need not to appear before the learned trial Court as the transfer petition is pending before the learned District Judge. The application was stated to be pending for 28.5.1994. The plaintiff points out that when the application for transfer of the case was pending, he had no knowledge that the case was dismissed in default on 23.11.1993. The respondent was not served on various dates in the application of transfer. When the statement of the petitioner was recorded on 4.6.1994, the petitioner made a statement on 4.6.1994 that his transfer petition has become infructuous as the suit was dismissed in default, though an application for restoration of the suit has been filed.

(3.) THE learned trial Court found that the petitioner has not produced any application. for transfer nor any order passed by the learned District Judge for stay of the proceedings. Still further, the application has been filed after a lapse of more than 6 months. Therefore, the petitioner has failed to prove his case and consequently, the application was declined. The learned First Appellate Court found that since the record of transfer of the case from the court of the learned District Judge has not been produced, therefore, the petitioner has concocted a false story in order to justify his absence. Still further, the Court found that the plaintiff himself was at fault as he has not filed any reply to the application for production of the documents, filed by the defendant. Still further, the petitioner has not produced his Lawyer in the witness box and there is no explanation that as to why his Lawyer has not appeared before the learned trial Court. The petitioner has not disclosed the name of the peon who had advised him not to appear in the Court nor such peon has been examined as witness. Therefore, the Court found that the petitioner is making one concoction after the other in order to justify his absence and lapse. Thus, dismissed the petition with costs of Rs. 5,000/ -.