GIGRAJ Vs. NAR SINGH PARSADJI

JUDGEMENT

(1.) THE circumstances that give rise to this appeal may briefly be stated thus. Narsingh Prasad applied for correction of entries in parcha chakbandi in respect of the land in dispute before the Assistant Settlement Officer on 14-2-1953. Though no names of the opposite party were mentioned in this application it subsequently became clear that Ghinsa, Ladu, Hanuman, Bhura and Gigraj were likely to be affected. Ghinsa, Ladu, Hanuman and Bhura admitted the validity of the objections raised by Narsingh Parsad and only Gigraj contested the same. On 2-11-1953 both the parties were present before the A. S. O. when the case was adjourned to 3-12-1953 for recording the evidence of the parties. On 8-12-1953 Gigraj and his counsel did not put in appearance before the A. S. O. who directed ex parte proceedings against them, and adjourned the case for recording the evidence of Narsingh Prasad to 29-1-1954. Oh this date the evidence of Narsingh Prasad was recorded and on 30-1-1954 a judgment was passed in his favour. On 25-2-1954 an application was presented before the A. S. O. by Kanhaiyalal Vakil on behalf of Gigraj and his two sons. Jivan Ram and Bhagwan Sahai. It was stated in the application that because of a demise of a near relative on 29-1-1954 they could not attend the case on 30-1-1954 and it was prayed that the order dated 30-1-1954 be set aside. It was admitted by Jivan Ram that Gigraj did not sign the application and that he himself signed 'gigraj'. THE A. S. O. rejected this application on 21-4-54 on the ground that only Gigraj was entitled to apply for setting aside the exparte decision and as the application was not properly presented by or on his behalf it deserved rejection. Against this order an appeal was filed by Gigraj and his two sons before the Settlement Officer on 13-5-1954. This appeal was rejected on 3-7-1954 as Gigraj was absented on that date and the Settlement Officer was of the opinion that only Gigraj should have preferred and prosecuted the appeal and as he himself was absent the appeal was liable to be dismissed in default. On that very day i. e. 3-7-1954 Jivan Ram son of Gigraj presented an application on before the appellate court through Kanhaiyalal Vakil praying for restoration of the appeal on the ground that the counsel engaged by him had gone away to attend his work in other courts. This was also rejected on 11-11-54, on the ground that the application should have been presented by Gigraj lor his counsel and that Jivan Ram was incompetent to present the same. Shri Kanhaiyalal went up in appeal against this order before the Additional Settlement Commissioner who upheld the decision of the lower court on the ground that a son could not present the appeal or application in the absence of a properly executed authority. Gigraj and his two sons have come up in appeal before the Board against this order.

(2.) WE have heard the learned counsel appearing for the parties and have gone through the record as well. Leaving aside the question for the time being as to whether the application dated 25-2-1954 was properly presented or not a question which is nevertheless important and cannot be ignored it is apparent from the application itself that it does not provide any held to the appellant. As pointed out above Gigraj made default in appearance on 3-12-1953 inspite of a proper notice and it was on that date that exparte proceedings were directed to be carried out against him. It was therefore incumbent upon Gigraj to offer satis factor explanation for his absence on 3-12-1953 and he could have succeeded in setting aside the exparte decision only after he could succeed in establishing sufficient cause for his absence on 3-12-1953. As has been admitted by the learned counsel for Gigraj the application dated 25-2-54 assigns some cause for absence on 29-1-1954 and 30-1-1954 and the absence on 3-12-1953 is conspicuous by its non-mention from this application. Thus evidently the result would be that Gigraj may have some good cause for absenting himself on 29-1-1954 or on 30-1-1954, but unless he can show a similar good cause for 3-12-1954 he can not seek the setting aside of the exparte decision dated 30-1-1954. Thus even if the application as it stands is taken at its face value Gigaraj has no cause for setting aside the ex parte order dated 30-1-1954 and the decisions of the lower court would be, therefore, correct.