BISHNU BHAGWAN AND ORS Vs. BANI MADHO SARAN

JUDGEMENT

(1.) This petition is directed against the order of the Additional District Judge, Narnaul dated 30th May, 1986 whereby the order of the trial Court dated 7th January, 1981, dismissing the application for restoration of the suit under Order 9 Rule 9 Civil Procedure Code was maintained.

(2.) The Plaintiffs Mahesh Dass and others filed an application for restoration of the suit. The suit was pending or statement of Morari Lal alone as the remaining evidence was already recorded. He could not appear on the date fixed as he suffered an attack of cardiac asthma on 22nd June, 1972 and therefore, could not appear on the date fixed i.e., 24th June, 1972, when the suit was dismissed in default. An application for restoration was filed within limitation on 14th July, 1972, alleging that the non-appearance of Morari Lal was not intentional and therefore, prayed for restoration of the suit. That application was contested on behalf of respondents. The trial Court framed the issues and allowed the parties to lead evidence. It is most unfortunate that the said application remained pending for nine years and was ultimately dismissed by the trial Court on 7th January, 1981. As a matter of fact the application for restoration could be disposed of on affidavits alone and there was no necessity of recording the evidence. It was all the more so when the application was admittedly filed within 30 days of dismissal in default. The matter did not end here. Even in appeal it look five years to dispose of the same and the learned Additional District Judge dismissed the same on the ground that the plaintiffs have not been able to point out any illegality or infirmity in the order of the trial Court.

(3.) In this Court as well it took three years for service of the respondents as they are many in number.