BHANWARLAL Vs. BHANWARLAL

JUDGEMENT

(1.) THIS is a revision against an order of the City Munsif, Udaipur, dated the 12th of September, 1949.

(2.) THE petitioner, Bhanwarlal Vaid sued the opposite party, Bhanwarlal Agarwal, for possession of certain property under section 9 of the Specific Relief Act. THE suit was dismissed for default of appearance of the plaintiff on the 28th of June, 1949. On the 4th of July 1949, the plaintiff submitted a petition for restoration of the suit on the ground that a few days before the date of hearing, the plaintiff had gone to Tonk in connection with some important business, expecting to return before the date of hearing, but three or four days before the said date, he was down with Malaria and remained ill for five or six days, and could not present himself on the date of hearing. No counter-affidavit was produced or evidence led to show that the reasons given by the plaintiff were incorrect, but the petition was contested by the defendant. THE learned Munsif dismissed the petition on the following grounds: - (1) That there was no independent evidence in support of the allegation of illness of the plaintiff, and that his own affidavit could not be relied upon as he was an interested person; (2) that the plaintiff had to prove not only that he was ill, but that the illness was sufficient to prevent him from attending the Court; (3) that he did not prosecute his case with sufficient effort as the said date was fixed for evidence, and he had neither filed a list of witnesses nor summoned them.