- (1.) THIS is a revision against the orders of the Additional Commissioner Jodhpur dated 30. 1. 60 setting aside the orders of the Assistant Collector Pali dated 10. 9. 59 ordering the restoration of the suit of the applicant.
(2.) WE have heard the learned counsel for the parties and examined the record. The merits of the case need not be gone into and discussed at this stage. For the only point urged before us is that when the learned Collector had ordered the restoration of the suit of the applicants treating their default in appearance due to a sufficient cause, the learned lower appellate court should not have interfered with the discretion exercised by the learned trial court and ordered the dismissal of the application for restoration only on the ground that the application was not accompanied by an affidavit in terms of Rule 33 (6) of the Rajasthan Revenue Courts Manual Part II. The learned counsel for the applicants has relied on I. L. R. Rajasthan series 1956 Volume VI page 926, Sohanlal vs. Dewa Chand urging that although the application for restoration had not been accompanied by an affidavit but which was filed latter on, this defect was overlooked with the observation that the court had not called for any affidavit and O. 9 rule 9 itself did not provide for the filing of an affidavit. So obviously, this ruling has got nothing to do with the present case. There the point for determination was not whether an application for restoration not accompanied by an affidavit could be acted upon or not. Rather in that case the affidavit having been filed not with the application but later and it having been found that it was not called for by the court, the High Court refused to look at it. As against it, 1957 R. L. W. (Revenue-Supplement) page 92 has been referred to by the learned counsel for the opposite party which also is of no help to decide the present case. The facts of the two cases can be clearly distinguished in as much as that was a case in which the learned counsel making a default in appearance had not submitted his own affidavit and the point for adjudication was not the effect of submitting an application for restoration accompanied by an affidavit and filing the same later on. Under O. 9 R. 9 C. P. C. , a plaintiff whose suit has been dismissed in default may apply to have the order set aside and if he satisfies the court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the court shall make an order setting aside-ing the dismissal upon such terms as to cost or otherwise as it thinks fit. There is no mention of accompanying such an application with an affidavit in this rule. Nor could any matter be proved by an affidavit under the C. P. C. unless the court directs to be done so. Under rule 33 (6) of part II of the Rajasthan Revenue Courts Manual, however, an application for restoration is required to be accompanied by an affidavit setting out in the form of a narrative, the material facts and the circumstances including the names and dates where necessary on which the applicant relied. There is, however, nowhere provided in this Rule, as has been held by the learned Additional Commissioner, that such an application would be treated to have become time barred if presented without any affidavit and the affidavit is filed latter on after the expiry of the time limit provided by law for the presentation of such applications. On the other hand, R. 46 providing that no application shall be received if it is not accompanied by the necessary documents also provides that the court may receive if and grant such time as it may consider proper for the furnishing of such documents for a sufficient cause shown. The second proviso thereto again lays down that nothing done under the first proviso, shall have the effect of extending the period of limitation in the case of a memorandum of appeal where the copy of the judgment or decree or formal order is not filed within the prescribed time. It says nothing about the non-extending of the period of limitation in the case of application for restoration, not accompanied by an affidavit in case a time be allowed by the court or the same may be received by the court at any stage latter than the presentation of the application. There was nothing to prevent the rule mak-ing authorities to make such a provision if they meant so. They could have very well said as they have done in case of memorandum of appeal unaccompanied by the copy of the judgment or decree or formal order, that if an application for restoration is unaccompanied by an affidavit and the court receives such an affidavit later on, it would not have the effect of extending the period of limitation. Not saying so and on the other hand only directing in the fourth paragraph of R. 46 that if the required documents were not supplied within the time allowed by the court, the application shall be rejected, goes to show that the rule making authorities did not mean to lay down that the application for restoration shall be taken to be presented only on the date on which the affidavit is required to accompany it under the terms of R. 33 (6) was filed. The reason is also obvious. Under O. 41, R. (1) a memorandum of appeal "shall be accompanied by a copy of decree appealed from unless the appellate court dispensed therewith of the judgment or which it is founded". No rule could be made by the rule making authorities in contravention of this clear provisions of the C, P. C. and so they have clearly laid down vide second proviso to R. 46 that even if the court receives a copy of the judgment or decree or formal order after the expiry of the period of limitation prescribed for the presentation of an appeal, it will not have the effect of extending that period. There being no such proviso in the C. P. C. or under any other Act to have accompanied an application for restoration by an affidavit, there was no need to say for the affidavit received even after the period of limitation prescribed for the presentation of such applications that it would not have the effect of extending the period of limitation prescribed therefor. There was thus no law under which an application for restoration, the affidavit required to accompany which is filed after the expiry of the period of limitation prescribed for such an application, could be held to be time-barred, The learned Additional Commissioner has, therefore so manifestly committed an error in law in holding that the application for restoration preferred by the applicants had become time-barred on the date the affidavit (not furnished along with application) was filed later, and in reversing the orders of the learned trial court and dismissing the application on this ground alone. We, therefore, accept this revision, set aside the orders of the learned Additional Commissioner and restore those of the learned trial court. . ;