S.K. Dhoan, J. - (1.) THIS appeal is directed against an order dated 27th September, 1980 passed by the learned Civil Judge, Aligarh, rejecting the applications purported to have been made by the Appellant under Order 41 Rule 19 of the Code of Civil Procedure (hereinafter referred to as the Code) and Section 5 of Limitation Act.
(2.) A civil appeal No. 210 of 1974 was before the learned Civil Judge and that appeal was fixed for hearing on 6th March, 1978. On that date the learned Judge dismissed the appeal in default of the appearance of the Appellant. On 3rd July, 1978 an application for restoring the appeal to its original number along with an application under Section 5 of the Limitation Act was made. The orders passed on these applications are the subject matter of the instant appeal. The learned Civil Judge has given two reasons for taking the view that the Appellant was not prevented by sufficient cause in being absent on the date fixed, viz., 6th March, 1978. First, there were more than one Appellants and, therefore, even if the Appellant No. 1 was ill the other Appellants could either put in appearance or could give the necessary instructions to the counsel. Secondly, the medical certificate filed in support of the case that on the relevant date viz., 6th March, 1978, the Appellant was confined to bed on account of typhoid did not advance the case of the Appellant. In my opinion, the learned Judge has gone wrong on both the points. A certified copy of the memorandum of appeal has been produced before me which indicates that in fact Mahesh Chand Vyas, the Appellant in this Court, alone had preferred an appeal. There appears to be some misconception somewhere regarding the number of the Appellants. For in the formal order which has been filed along with this appeal we find four Appellants instead of one the sole Appellant Mahesh Chand Vyas. On the second point too, Sri S.U. Khan, who has put in appearance on behalf of the Respondent No. 1 Sri Yogendra Varshney, has accepted the position that the medical certificate issued by some vaidya went to show that the Appellant was confined to bed since 2nd March, 1978 to 6th June, 1978. The crucial question which was required to be determined by the court below was whether the Appellant was ill on 6th March, 1978. For determining this question the certificate had to be closely perused and a finding had to be recorded that the certificate was false in its entirety. That has not been done. It is, therefore, apparent that there was, no material before the court below to come to the conclusion that on 6th March, 1978, the Appellant was not ill.
(3.) IF the version of the Appellant that he was ill on 6th March, 1978, is accepted and if his version that the illness continued till 6th June, 1978, too is accepted then the question of the application for restoration having been filed beyond time does not arise. Admittedly, the application was filed on 3rd July, 1978, on the date when the civil court reopened after the Summer Vacations . I have already taken the view that the court below has not given any reason for rejecting the certificate of the vaiyda. this certificate corroborates the case of the appellant that he fell ill on 2nd March , 1978 and continued to be so till 6th June, 1978. The court below therefore, committed an error in rejecting both the applications of the appellant .;