POONAMCHAND Vs. HIMMATRAM

JUDGEMENT

(1.) THIS is a revision against the orders of the Additional Commissioner Jodhpur dated 30. 1. 60 setting aside the orders of the Assistant Collector Pali dated 10. 9. 59 ordering the restoration of the suit of the applicant.

(2.) WE have heard the learned counsel for the parties and examined the record. The merits of the case need not be gone into and discussed at this stage. For the only point urged before us is that when the learned Collector had ordered the restoration of the suit of the applicants treating their default in appearance due to a sufficient cause, the learned lower appellate court should not have interfered with the discretion exercised by the learned trial court and ordered the dismissal of the application for restoration only on the ground that the application was not accompanied by an affidavit in terms of Rule 33 (6) of the Rajasthan Revenue Courts Manual Part II. The learned counsel for the applicants has relied on I. L. R. Rajasthan series 1956 Volume VI page 926, Sohanlal vs. Dewa Chand urging that although the application for restoration had not been accompanied by an affidavit but which was filed latter on, this defect was overlooked with the observation that the court had not called for any affidavit and O. 9 rule 9 itself did not provide for the filing of an affidavit. So obviously, this ruling has got nothing to do with the present case. There the point for determination was not whether an application for restoration not accompanied by an affidavit could be acted upon or not. Rather in that case the affidavit having been filed not with the application but later and it having been found that it was not called for by the court, the High Court refused to look at it. As against it, 1957 R. L. W. (Revenue-Supplement) page 92 has been referred to by the learned counsel for the opposite party which also is of no help to decide the present case. The facts of the two cases can be clearly distinguished in as much as that was a case in which the learned counsel making a default in appearance had not submitted his own affidavit and the point for adjudication was not the effect of submitting an application for restoration accompanied by an affidavit and filing the same later on.