Bir Singh vs The State of Punjab and Another

J.V. Gupta, J.—This is an appeal against the order of the Additional District Judge, Patiala, dated 25th May, 1979, thereby the application for restoration of the appeal has been dismissed.

The appeal filed by the Plaintiff Appellant in the Court of Additional District Judge, Patiala, was dismissed in default on 31st January, 1979. An application for restoration of the same was filed on 2nd May, 1977, on the ground that the Appellant was suffering from a serious ailment and remained ill from 15th January, 1977 to 28th April, 1977. In these-circumstance, he was, therefore, unable to attend the Court during this period. The counsel did not appear when the case was called for hearing being busy in other Courts. Thus, non appearance, was not intentional. In support of this application, an affidavit was also filed. In support of these allegations made in the application, Appellant appeared as AW-2 and also produced medical certificate and prescription slips issued by Dr. Raja Ram Sharma. Dr. Raja Ram Sharma appeared as AW 1. The learned Additional District Judge did not disbelieve these two statements but dismissed the application on the ground that there is no explanation as to why the application for restoration could not be filed on 29th April, 1977, i.e. three days earlier.

Learned Counsel for the Appellant contended that once it is believed that the Appellant was suffering and his counsel could not appear when the cease was called for hearing being, busy in other Courts this was itself a sufficient-ground to restore the appeal. In support of his contention he referred to Shrimati Chander Kanta v. Sulekh Chand Summer Chand 1978 PLR 423 and Parkask Surya v. Rasiklal 1978 (1) RCR 10.

On the other hand, the learned Counsel for the Respondent contended that the Appellant is unnecessarily delaying the proceedings, who has lost upto the Supreme Court and the whole litigation is at frivolous one.

After hearing the learned Counsel for the parties, I am of the opinion that application, for restoration should have been allowed on payment of costs. If the allegations of the Appellant are not disbelieved as to his being ill from 15th January, 1977 to 28th April, 1977, mere delay of three days is no ground to dismiss the application.

In these circumstances, this appeals is accepted the order of the learned Additional District Judge, is set aside and the application for restoration of the appeal is allowed conditional on payment of Rs. 200/-as costs. The appeal will be registered at its original number and will be decided in accordance with law. Parties, have been directed to appear referee, the District Judge, Patiala, on 28th October, 1980.