MATHURA DEVI Vs. KASHMIRI LAL SYAL

JUDGEMENT

(1.) This petition by the defendants under Section 115 of the Code of Civil Procedure is directed against the order of the Senior Subordinate Judge, Ferozepur, dated June 3, 1976, whereby the suit which was dismissed for default of appearance was restored.

(2.) Two objections were raised against the application filed for restoration of the suit, namely, that the application was barred by time and that there was not sufficient ground for non-appearance of the plaintiffs on the date fixed. Finding on both the issues is a finding of fact and there is hardly any ground which can entitle this Court to interfere with that order in the exercise of its revisional jurisdiction. That apart, the date on which the suit was dismissed for default was fixed by the Reader as on the previous day, the Presiding Officer was on leave. The suit, therefore, could not be dismissed on that date which was fixed by the Reader who was not entitled to do so. Under similar circumstances in Hukam Chand v. Mani Shibrat Dass and another, 1934 AIR(Lah) 984 it was held that failure to appear on the date fixed by the Clerk of the Court does not justify the dismissal of the suit in default. The learned counsel for the petitioners, however, relied on my judgment in Union of India v. Smt. Har Kaur, 1978 1 RCR(Rent) 250. But that case has hardly any applicability to the facts of the present case. There, no question of any ex parte proceedings was involved and the tenant had failed to tender rent on the date which was fixed by the Reader although he was present on that date.

(3.) Consequently, this petition has no merit and the same is hereby dismissed. No costs.