- (1.) This second appeal is directed against the judgment and order of the learned Additional District Judge, Ambala dated December 2, 1977, dismissing the application for restoration of the first appeal. According to the averments made in the application, the appeal in the lower appellate court was fixed for January 29, 1977 for appearance of the parties and on that date it was adjourned to February 21, 1977. As the case file was not available on February 21, 1977, the appellants came back without being informed of the next date. The other two connected appeals, according to the appellants were fixed for March 7, 1977 and on that date when Baldev Singh, appellant went to attend the Court, he found that their appeal had been dismissed in default on February 24, 1977. Though it is not made clear in the application as to whether the appellants were present on February 21, 1977 in the Court or not but in the affidavit filed in this Court on November 29, 1978, by Baldev Singh appellant, it has been stated that the facts contained in paragraphs 2 to 7 are believed to be correct on the information received from his Advocate, Mr. Ram Sarup Aggarwal. When paragraph 6 of this affidavit is read, it is clear that on February 21, 1977, he was not personally present. However, in the affidavit filed with this appeal, he specifically stated in paragraph 5 that on February 21, 1977, he came to the Court but the file could not be traced on that date. From the statement made on oath by Mr. Ram Sarup Aggarwal, Advocate. It is evident that Baldev Singh appellant was never informed that the appeal was fixed for February 21, 1977, Baldev Singh appellant, has therefore, made a false averment in the affidavit produced with this appeal. Not only that, he has tried to support his appeal by fabricating the document, copy of the summons, alleged to have been served on this counsel.
(2.) This matter was referred to the learned District Judge, Ambala, who after recording evidence, has reported that the date in the said copy of the summons was changed by Mohan Lal, Clerk of Mr. Ram Sarup Aggarwal, Advocate from February 21, 1977 to February 29, 1977. Ordinarily, a suit for appeal dismissed for default should be restored if the application has been made within limitation even though sufficient cause may not have been strictly proved. In case of any negligence on the part of the applicant, the opposite party can be compensated with costs. But here the party has come out with a false averment and has even tried to overreach the Court by producing a fabricated document in support of its appeal. In these circumstances it would not be just and proper to restore the appeal. A similar view was taken by R.N. Mittal, J. in Hari Singh v. Smt. Lila Wati and another (1).
(3.) The learned counsel for the appellants has relied on Avtar Singh Minor etc. v. Bhajan Singh etc. (2) and Messrs N.K. Private Ltd. v. Hotz Hotels (P) Ltd., 1974 1 ILR(Del) 500 There is no dispute with the proposition laid down in these authorities and as already noticed above I am also of the view that ordinarily the appeal or suit dismissed for default should be restored. But, in view of the reasons recorded above, I do not find it to be fit case to reverse the order of the lower appellate Court.;