ROOP KISHORE Vs. JUGRAJ

JUDGEMENT

(1.) THIS is a first appeal by plaintiffs Roopkishore and others and has arisen in the following circumstances.

(2.) THE plaintiffs instituted a suit against the defendant-respondent Jugraj for recovery of a sum of Rs. 5035. 4. 0 in the court of the District Judge, Jodhpur, which was eventually transferred to the court of the Civil Judge, Jodhpur. THE suit was originally based on an acknowledgment. THE learned Civil Judge dismissed the suit by his judgment dated 18th September, 1950. THE plaintiffs went up in appeal to the District Judge, Jodhpur, who allowed the appeal and remanded the care to the trial court with a direction that they be allowed to amend their plaint within one month of the record reaching the trial court and that that court would then proceed to try the suit according to law. This happened on 27th September, 1951. It appears that the record reached the trial Judge on the 27th October, 1951, whereupon he passed an order the case be put up before him with the application for amendment when filed. It may be pointed out that the trial court did not give any notice to the parties of the record having reached that court. THEreafter, on 10th January, 1952, learned counsel for the defendant brought the whole matter to the notice of the court, and the case was sent for and put up in the presence of learned counsel for the plaintiffs. THE submission of learned counsel for the defendant was that as no application for amendment had been put up within the time allowed by the court, the case be consigned to the record room. Learned counsel for the plaintiffs on the other hand contended that he had received no notice of the record having reached the court and, therefore, he was within his rights to put in the amended plaint even at that time, and within one month of the receipt of information by him, and the case was directed to be put up for orders on 5th February, 1952. On the later date, learned counsel for the plaintiffs filed the amended plaint praying that the time of one month allowed by the appellate court should be computed from 10th January, 1952, being the date on which he came to know of the record having reached the trial court. He also prayed in the alternative that if his aforesaid plea was not accepted, then time may be extended from the date of the receipt of the record by the trial court up to the date of the presentation of the amended plaint. THE trial court declined to accept either of the two prayers made on behalf of the plaintiffs and dismissed the suit on 6th February, 1952. This is an appeal from that judgment.