MAHANT BHARAT DAS Vs. BHURA LAL

JUDGEMENT

(1.) THIS application in revision has been filed by the defendant against the order of the learned Assistant Collector Jahajpur, dated 24. 3. 56 whereby he confirmed the order given by his predecessor on 15. 12. 55 restoring the suit dismissed in default.

(2.) WE have heard the learned counsel for the applicant and have examined the record. It appears that the plaintiff, non-applicant, field a suit in the court of the S. D. O. Shahpura against the applicant. The suit was dismissed on 9. 8. 55 as on this date none of the parties were present in the court. On 17. 11. 55. i. e about 3 months after the aforesaid order, the plaintiff filed an application for restoration of the suit on the ground that on account of illness he could not appear. This application was neither supported by any affidavit nor was the applicant himself examined nor was any evidence recorded by the court in order to satisfy himself as to whether there existed a sufficient cause for the non-appearance of the non-applicant-plaintiff on the last date of hearing. The trial court also did not see as to why this application was not presented within the prescribed period of 30 days. The S. D. O. however, allowed the application on the ground that the plaintiff was an old man and could not appear on account of illness. On the same date the applicant presented an application before the court challenging the plea of illness taken by the plaintiff as well as the fact that the application for restoration was barred by limitation. The only order given by the S. D. O. on this application was that it may be put up with the connected file. The case was than transferred to the court of the Assistant Collector, Jahajpur for disposal. He heard the parties and by his order dated 24. 3. 56 rejected the application of the defendant applicant and confirmed the order of restoration given by the S. D. O. It is against this order that this revision has been filed before us. The main contention of the learned counsel for the applicant is that there is nothing on the record to show as to how the learned S. D. O. has satisfied himself that there existed a sufficient causes within the meaning of Order 9 Rule 4, C. P. . C for the non appearance of the plaintiff on the date when the suit was dismissed in default. It was urged that the application for restoration itself was not even signed by the plaintiff, Bhuralal, but was signed and presented by somebody else on his behalf. It was also argued that the application for restoration was barred by limitation. WE have compared the signatures of Bhuralal on this application with those on the order sheet as well as on several other miscellaneous applications and on his own deposition on the file. These signatures do not at all tally with each other and we can at once say that the signatures on the application for restoration were definitely not those of Bhuralal, the plaintiff and that the application for restoration was neither signed nor presented by him. This could as well be detected at once had the S. D. O. cared to exercise a little care. The learned S. D. O. also did not deem it necessary to examine the applicant or record any evidence in order to satisfy himself as to the genuiness of the plea taken by him. He had also given no reasons as to how he was satisfied that there existed a sufficient cause for the absence of the plaintiff. Further the order dismissing the suit was given on 19. 8. 55 while an application for its restoration was presented on 15. 11. 55, i. e. , about 87 days instead of 30 days which is the period prescribed for presentation of such applications under Art. 163 of the Indian Limitation Act. The learned S. D. O. did not at all see as to how this application which was on the face of it Barry by limitation could be entertained and allowed by him. All these points were raised before him by the defendant applicant in his application referred to above, but curiously enough, before deciding all these controversial matters he transferred the case to the learned Assistant Collector who also completely failed to apply his mind to the points raised in the application. Art. 163 of the Indian Limitation Act prescribes 30 days for the presentation of an application for restoration of suits dismissed in default. It the absence of a clear provision in the Rajasthan Tenancy Act which had come into force on the date when the S. D. O. gave the order of restoration, a court is not empowered to condone the period of limitation under sec. 5 of the Indian Limitation Act and a delay in presenting an application for restoration cannot be excused. A. I. R. 1948 Madras, 480 (P. 2) is an authority on this point. It is thus clear that both the learned S. D. O. as well as the learned Assistant Collector not only acted illegally but also with material irregularity in allowing the application for restoration without any sufficient cause and which was also barred by limitation The learned counsel for the applicant rightly pointed out that all these proceedings before the trial court were grossly illegal and deserve to be quashed. Accordingly we allow this application, set aside the order of the S. D. O. and the Assistant Collector restoring the suit and direct that the application for restoration should stand rejected and the suit be dismissed. .