HARI SINGH Vs. AMBO

JUDGEMENT

(1.) This revision petition is directed against the order of the Additional District Judge, Amristar, dated August 28, 1986, whereby the order of the trial Court rejecting the application for the restoration of the suit dismissed for default of appearance on September 29, 1982, was maintained.

(2.) The plaintiffs filed the suit for the grant of the declaration to the effect that they were the owners in possession of the land measuring 136 kanals 1 marla, with consequential relief to grant the injunction restraining the defendants from interfering with their possession. September 29, 1982, was the date fixed for the evidence of the plaintiffs. Since many opportunities had been afforded to the plaintiffs in this behalf earlier, this date was fixed on payment of costs. On that date, it appears, the costs were also not paid. The trial Court dismissed the suit for default of appearance as well as under Section 35-B of the Code of Civil Procedure, that day. The plaintiffs filed an application for a certified copy of the said order on October 1, 1982, which was ready on October 23, 1982, and delivered on November 4, 1982. Application for restoration of the suit was filed on November 11, 1982. Exclusion of time was claimed on the basis that the days spent in obtaining the certified copy of the order be excluded in computing the period of limitation. It was stated therein that the plaintiffs had come to the Court along with the witnesses and had also appeared before the Court when the case was called, but they and their witnesses were told by Court to sit outside the Court room. When the case was again called and after hearing the call, the plaintiffs had gone away to bring their counsel who was found to be busy in another Court, the suit was dismissed for default, as noticed earlier. These allegations were controverted in the reply filed on behalf of the defendants. Both the Courts below have found that the application dated November 11, 1982, was barred by time and that the plaintiffs were not entitled to the exclusion of the time spent in obtaining the certified copy of the order dated September 29, 1982 under Section 12 (2) of the Limitation Act. Thus, the application was held to be barred by time. It has also been found that the plaintiffs had failed to make out a sufficient cause for the restoration of the suit.