- (1.) On 10th of May, 1980, Kundan Singh plaintiff's appeal was allowed by the Additional District Judge, Amritsar, and decree for specific performance of contract was passed. Bahadur Singh respondent in that appeal, who was a subsequent vendee, filed an application under Order 41 Rule 21 of the Civil Procedure Code for setting aside the ex parte judgment and decree dated 10th May, 1980, and for hearing the appeal in their presence on the ground that he was sick on the date of hearing and his absence was for that sufficient cause. The application was opposed and it was pleaded by Kundan Singh that there was no sufficient cause for setting aside the ex parte judgment and decree because the applicant did not intentionally attend the Court. But while rejecting the application by order dated 24th February, 1981, Shri Amarbir Singh Gill, Additional District Judge, Amritsar, referred to certain interim orders and concluded that when the arguments were heard in appeal on 8th May, 1980, counsel for the parties, were present and the case was posted for announcement of judgment on 10th May, 1980, on which date, the counsel for the appellant was present and none appeared on behalf of the respondent and the non-appearance of the counsel on the date of announcement of judgment was wholly immaterial. What the learned Additional District Judge meant was that the arguments were heard in the presence of counsel for Bahadur Singh. Bahadur Singh has come to this Court in this revision to impugn the aforesaid order.
(2.) After hearing the learned counsel for the parties, I am of the view, that the order of Court below dated 24th February, 1981, cannot be sustained. A reading of original judgment dated 10th May, 1980 shows that counsel for the respondents including counsel for Bahadur Singh were not present and after hearing the arguments on behalf of counsel for Kundan Singh alone, the matter was decided. The matter is again very clear from the reply filed by Kundan Singh that none appeared on behalf of Bahadur Singh intentionally. Therefore, there is a factual mistake in the order of Court below.
(3.) The application for hearing of the appeal in the presence of both the sides was filed by Shri R.S. Sud, Advocate of Tarn Taran, whereas the appeal was to be heard at Amritsar. The unrebutted position on the record is that on the crucial day, Bahadur Singh was unwell and, therefore, could not go to his counsel to take him to Amritsar for arguing the case on his behalf. Bahadur Singh has made out sufficient cause for non-appearance.;