ISHRA Vs. OKHA

JUDGEMENT

(1.) THIS revision, which has been erroneously described as an appeal is directed against an appellate order of the Additional Commissioner, Jodhpur, dated 21st December, 1955, whereby he affirmed the order of the Assistant Collector, Bhinmal, dated 22.12.1954, dismissing the application for restoration filed by Ishra.

(2.) WE have heard the learned counsel appearing for the parties and have also examined the record. The material defects of the case, which are not in dispute, may be briefly stated as fallows. Okha, non-applicant instituted a suit against Ishra and others for recovery of possession of land under item No.10, Group B, Schedule I, of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, on 25-6 1952 in the court of the Assistant Collector Bhinmal. The case was adjourned from time to time in order to enable the defendants to appear in response to the summonses which were issued at the instance of the plaintiff. Ishra appeared before the learned Assistant Collector on 12.11.1952. The case was adjourned to 17.12.1952. It was directed that the remaining defendants be summoned. On that date Isrha and Raj Singh defendants did not appear in the court of the learned Assistant Collector despite service of summonses It appears from the endorsement recorded on the reverse of the summons issued to Ishra that as he could not be found at his usual place of residence the summons was affixed to a conspicuous part of his house in the presence of some of the respectable persons of the village. On 15.1.1953 the learned Assistant Collector directed that proceedings be taken ex parte against Ishra and Raj Singh defendants, as they had not appeared despite service of summons on them. The suit was decreed ex parte on 28.8.53 after recording the evidence of a few witnesses who appeared on behalf of the plaintiff and supported his version of the matter. An application to set aside the ex parte decree was filed before the Assistant Collector on. 28.6.1954. It was dismissed by him on the ground that it was barred by limitation and the applicant had not adduced any sufficient cause why the ex parte decree which was passed against him be set aside. Ishra lodged an appeal before the Additional Commissioner, Jodhpur against the order of the Assistant Collector Bhinmal, dated 22-12-1954 dismissing his application for restoration. The appeal was dismissed by the learned Additional Commissioner on 21 12-1955 on the ground that there was hardly any justification why an application for restoration which was filed after full one year should be allowed. Ishra has come up in revision to the Board impugning the order of the learned Additional Commissioner on the ground that his application for restoration should not have been dismissed as being barred by limitation.