INDER SEN ISRANI, J. - (1.) THIS is Civil Misc. Appeal against the order dated 27 -4 -1977 passed by learned Additional District Judge No. 2, Jaipur City, Jaipur in Civil Misc. Case No. 17/1974 by which application of the appellant plaintiff under Order 41, Rule 19 CPC was dismissed.
(2.) BRIEFLY stated the facts of the case are that appellant plaintiff filed a Civil suit for possession and mesne profits against the respondents in the Court of learned Munsif, Jaipur City (West) Jaipur. The appellant prayed for a decree of possession of land and the house constructed on the same. In the said suit the defendants respondents raised a legal objection that since the subject matter of the suit was agricultural land and all the reliefs claimed can be granted by a Revenue Court, therefore, it was not triable by a Civil Court. The learned trial court sustained this legal objection and held that the suit was exclusively triable by a Revenue Court and directed to return the plaint to the appellant for presentation in the competent Court vide his order dated 19 -10 -1972. The appellant preferred the Civil Misc. Appeal under Order 43, Rule 1(a), CPC in the Court of the learned District Judge, Jaipur City which was transferred to the Court of the learned Additional District Judge, Jaipur City for disposal. In the aforesaid appeal the last date fixed was 12 -12 -1973 for awaiting the record of the trial court and also for arguments when it was dismissed in default as none appeared for appellant. An application was filed under order 41, Rule 19 CPC where in it was stated that Shri Ram Kishore Sharma (Hemani) Advocate who was working with Shri Vidhya Bhushan Sharma Advocate as assistant at that relevant time, went in the court 12 -12 -1973 twice or thrice to find out whether the arguments will be heard in the said appeal. But the court was busy in other cases upto 3 p. m. He thereafter became busy in other cases and again came in the court at about 4.30 p m. and saw 'peshi' register of the Court and by mistake came to know from an entry that the appeal was adjourned to 8 -2 -1974. He therefore, noted down this date on the Sarvark of the file of the appeal and also made entry in the diary of Shri Vidhya Bhushan Sharma, Advocate. The counsel for the appellant on 8 2 -1974 came to the Court and when the appeal was not called up to 1. p. m. an enquiry was made from the Reader of the Court and then it was revealed to him that not such appeal was fixed on this date. The Reader after checking the 'Peshi' Register of 12 -12 -1973 informed him that the appeal of the appellant was already dismissed in default on 12 -12 -1973. The counsel for the appellant therefore, filed an application under Order 41, Rule 19 CPC on the same day that is 8 -2 -1974 for re -admission of the appeal dismissed for default stating there in facts mentioned above and praying that he had no knowledge about the dismissal of the appeal on 12 -12 -1973 and this came to their knowledge only on 8 -2 -l 974. An application under Section 5 of the Limitation Act supported by affidavits of Shri Ram Kishore Sharma (Hemani), Advocate and that of the appellant were also filed. This application was contested by the respondent and after recording the evidence and hearing the arguments of both sides the learned Additional District Judge dismissed the application of the appellant and held that the appeal was rightly dismissed in default.
(3.) NONE has appeared on behalf of the respondent. The learned Counsel for the appellant Shri R.S. Rathore Advocate has contended that the learned Additional District Judge has erred in dismissing the application filed under Order 41, Rule 19 CPC. He has pointed out that Shri Vidhya Bhushan Sharma and Shri Ram Kishore Sharma (Hemani), Advocate bad appeared in witness box and stated that the date 8 -2 -1974 was noted by Shri Hamani out of mistake. Diary Ex. 1 was also produced in which the date of 8 -2 -1974 has been noted. The entry of the Peshi regarding the same mistaken date was Ex. 2 and Ex. 3 Sarvarak of the file of the appeal was also produced on which also the date of 8 -2 -1974 was mentioned, On behalf of the respondent Ahmedkhan respondent himself was examined as witness and he denied the assertion of the appellant and stated that Shri Hemani had never come in the court on the relevant date.;