RAM KISHAN Vs. MOOLA

JUDGEMENT

(1.) This revision,wrongly styled as second appeal, arises under the following circumstances: The applicant, Ram Kishan, sued the opposite party, Moola for declaration injunction etc. The suit was dismissed in default on 1.9.60. The applicant, therefore, preferred an application for the restoration thereof. The allegation in the application that the applicant had fallen ill was totally denied by the opposite party in his written statement. The learned Sub -Divisional -Officer, Hindaun who was trying the suit rejected this application only after hearing the arguments of the parties, but without letting them have an opportunity of producing evidence on the points they had joined issues, with the observation that the suit had been dismissed in default once before as well and that this time no reason for illness had been given. The applicant preferred an appeal to the Additional Commissioner number 11, Jaipur. The learned Additional Commissioner observed that from the judgment of the learned Sub -Divisional -Officer it appeared that the restoration application had been dismissed because no evidence about illness had been produced by the applicant and that he (Additional Commissioner) further found that neither illness was specified nor medical certificate had been produced. He, therefore, dismissed the application disbelieving that the applicant was ill on the relevant date keeping in view particularly that the applicant had pleaded illness as reason even at the time he got the suit restored when it had been dismissed in default previously.

(2.) In revision only the exercise of jurisdiction can be looked into, not only the excess or failure thereof but also the mode in which it has been exercised. We find from the perusal of the record that the applicant was never asked to prove his illness. Nor does the judgment of the learned Sub - Divisional -Officer contain anything to show that the restoration application had been dismissed by him because of the failure to furnish proof of illness on the part of the applicant. The learned Additional Commissioner has, therefore, decided the appeal that had been preferred to him on a mis - reading of the record; and also he has failed himself to apply his mind properly to the case. In other words he has exercised the jurisdiction vested in him as an Appellate Court not in the manner prescribed by law by examining the pleadings and evidence of the parties but in an arbitrary manner, besides misreading the judgment of the trial court itself. Only because the name of the illness had not been specified and a medical certificate had not been produced, the application could not be dismissed. If it was so necessary that the name of the illness should be specified and the medical certificate should be produced, the applicant could have been asked to do so and it could have been only after his failure in complying with that direction that any order could have been passed against him. As for the manner in which the learned Sub -Divisional Officer has decided this application, the less said the better. He did not at all care to find out what was the point at issue arising out of the application and the written statement submitted in reply thereto. Nor has he cared to let the applicant prove his allegation. What he has done is that he has been prejudiced by the applicant making a default in appearance and getting the suit restored on the ground of illness. This can never be allowed to be a manner proper for the deciding of any application.

(3.) The law requires that on the basis of the pleadings of the parties it would be determined what are the points at issue between them. They would then be asked to produce evidence in support of their allegations. It can be only after letting them have an opportunity of producing evidence and weighing the evidence so produced that an order can be passed on any application whatsover presented to a trial court. This is a mandatory provision of law. The learned Sub -Divisional Officer in ignoring to comply with it has committed a grave illegality besides a material irregularity in the procedure laid down for the deciding of the applications.