NOOR HABIB Vs. BAHADUR KHAN

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiff against an appellate order of the Additional Commissioner, Jaipur, dated 18. 9. 1954 upholding the order of the trial court whereby the plaintiffs' application for restoration of the application for restoring the suit was dismissed.

(2.) WE have heard the learned counsel appearing for the parties and have gone through the record. The suit which was originally instituted on 15. 10. 1946 in the court of the Collector Tonk, after, passing through various vicissitudes of fortune came up before the S. D. O. Tonk, for hearing on 20. 4. 1953 and as the plaintiff and his counsel were absent the suit was dismissed in default. On 22. 4. 53 an application was presented for restoration of the suit. On 1. 6. 1953 the trial court ordered that Rs. 15/- should be paid as costs to the opposite party on 30. 6. 1953. On this date no costs were paid nor was the plaintiff present. Hence the application was dismissed. On 27. 7. 1953 the plaintiff applied for restoration of his application for restoring the suit on the ground that there was some unavoidable delay in arranging money and hence he may be allowed now to pay the costs. The trial court held that this being an application for restoration of the suit beyond 30 days was liable to rejection. The lower appellate court confirmed the order under the impression that restoration of an application which in itself was for restoration of a suit (dismissed in default was not permissible under the law. Hence this second appeal by the plaintiff.