Jaipur Development Authority v. Sn Agarwal

Application under Section 5 of the Limitation Act in Restoration Application No. 654/2012:

Heard counsel for both the parties on the application under Section 5 of the Limitation Act filed along with the second restoration application for condoning the delay of 141 days in filing the restoration application wherein it has been submitted that by the peremptory order dated 16th March, 2012 granting four weeks' time for filing the PF and Notices for service upon the sole respondent could not come to the knowledge of the appellant and the same came to its knowledge when the respondent moved execution petition before the lower court.

Counsel for the applicant submits that before passing the order dated 16 March, 2012, on behalf of the sole respondent, a power was filed by Shri BL Agarwal, Advocate on 22nd February, 2012. Counsel further submits that as a matter of fact, there was no need to file fresh PF and notice.

Counsel for the respondent submits that the Court may pass appropriate order.

Considering the facts and circumstances of the case this Court is of the view that the aforesaid cause for filing delayed restoration constitutes sufficient cause for condonation of delay.

In view of the above, the application under Section 5 of the Limitation Act is allowed and the delay of 141 days in filing the second restoration application is, condoned.

Restoration Application No. 654/2012:

For the reasons mentioned in the restoration application and considering the fact of condonation of delay in filing the restoration application, this second restoration application is allowed and the first restoration application No. 522/2012 is restored to its original number.

Application under Section 5 of the Limitation Act in Restoration Application No. 654/2012:-

The aforesaid second appeal was listed in Court on 22 May, 2008 and the same was dismissed in absence of counsel for non-prosecution.

Counsel for the appellant applicant submits that they were not aware about the fact of dismissal of the appeal for non-prosecution and came to know about the same on 22 February, 2009 when the respondent submitted a representation along with a copy of the aforesaid order of dismissal of the appeal. Thereafter decision was taken to file the restoration application. Counsel further submits that the delay in filing the restoration application is neither intentional nor deliberate rather the same is bonafide.

Counsel for the respondent submits that the Court may pass appropriate order.

Considering the facts and circumstances of the aforesaid case, this Court is of the view that the delay in filing the restoration application is neither deliberate nor intention, therefore, the same deserves to be condoned.

In view of the above, the application under Section 5 of the Limitation Act is allowed and the delay of 883 days in filing the restoration application is, condoned.

Restoration Application No. 522/2009:-

For the same reasons mentioned in the restoration application and considering the fact of condonation of delay in filing the restoration application, this restoration application is allowed and the second appeal is restored to its original number.