// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Appeal No.3840/2007 Ratan Lal Sharma S/o Shri Dev Lal Sharma Versus Abdul Gani S/o Shri Abdul Majeed Date of Order ::: 29.08.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Raj Dev Tripathi, Counsel for appellant None present for respondent #### By the Court:- Heard learned counsel for the appellant. No one is present on behalf of the respondent in spite of service of notice. The plaintiff-appellant filed a suit for recovery of a sum of Rs.76,450/- in the trial court, which was fixed for cross-examination of the plaintiff's evidence on 23rd February, 2007 but on that date neither the plaintiff nor his counsel remained present in the court, therefore, the suit was dismissed in default. The plaintiff filed an application for restoration of the suit on 9th March, 2007, which was dismissed by the trial court on 30th August, 2007. Being aggrieved with the same, the present appeal has been preferred on behalf of the appellant. // 2 // The learned counsel for the appellant contended that the plaintiff himself fell ill whereas his counsel went to Delhi to attend the marriage of his brother, therefore, both could not make themselves present in the court. The medical-certificate was available with the plaintiff but same could not be filed as it was misplaced. The trial court committed an illegality in drawing a presumption against the plaintiff only on the ground that the medical- certificate has not been produced whereas the application was filed well within time and an affidavit in support thereof had also been filed, therefore, there was no reason for rejecting the application for restoration of the suit. He further contended that the provisions relating to restoration should have been construed liberally by the trial court. He, therefore, contended that the impugned order may be set-aside and the appeal may be allowed. As stated above, no one is present on behalf of the respondent in spite of service of notice. I have considered the submissions of learned counsel for the appellant in the light of reasons assigned by the trial court for rejecting the application. The trial court rejected the application only on the ground // 3 // that the counsel for the plaintiff sought permission to produce medical-certificate of the plaintiff and for that purpose the case was fixed on 24th August, 2007 but on that date the same was not filed and it was contended that the same has been lost some where, therefore, an adverse inference is to be drawn against the plaintiff. There is no dispute that the suit was dismissed in default on 23rd February, 2007 whereas the application was filed on 9th March, 2007 i.e. within the time; an affidavit was also filed in support of the application for restoration of the suit. The defendants did not file any reply to the application for restoration of the suit meaning thereby they did not deny the grounds taken in the application for restoration of the suit. It is quite possible that the time might have been taken by the counsel for producing the medical-certificate but the same might have been lost and, in these circumstances, it was not proper on the part of the trial court to draw an inference against the plaintiff and to reject the application for restoration of the suit. The approach of the learned trial court in this regard is absolutely unjustified and the order passed by it cannot be allowed to // 4 // stand. Consequently, the miscellaneous appeal is allowed. The impugned order dated 30th August, 2007 passed by the Additional District & Sessions Judge No.7, Jaipur City, Jaipur, is set-aside. The Suit No.96/2005 filed by the plaintiff is restored to its original number. The trial court is directed to proceed with the suit further in accordance with the law. No order as to costs. (Narendra Kumar Jain) J. //Jaiman//