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2015 DIGILAW 2622 (ALL)

Rahul Pandey v. Deep Narain

2015-08-26

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. Heard counsel for the parties. 2. The petitioners have challenged the order dated 18.5.2015 passed by Additional District Judge, Bansi, Siddharthnagar in Civil Revision No.90 of 2011, whereby the delay condonation application filed by the plaintiff-respondents in support of the application for restoration of Original Suit No.68 of 1979, has been allowed on payment of cost of Rs.1000/-. 3. It transpires from the record that Original Suit No.68 of 1979 was filed by Gaya Prasad. He died during the pendency of the suit and, thereafter, his widow Pranpati and his daughter Darshan Dei were substituted in his place. It seems that during the pendency of the proceedings, both of them have also died and the respondents herein, who are sons of Darshan Dei, were substituted and are contesting the proceedings. 4. The suit referred to above was dismissed for want of prosecution on 23.4.1991. An application dated 12.7.1991 for restoring the suit to its original number (Paper No.4 Ga 2) was filed on 17.7.1991. It is not in dispute that it duly bears the thumb impression of Pranpati. A separate application for condoning the delay was also filed on 17.7.1991. It was supported by the affidavit of Pairokar Lalji Pandey. According to the petitioners, the aforesaid application does not bear the signatures or thumb impression of the plaintiffs. The trial court, by an order dated 29.9.2011, rejected the application for condonation of delay, being of the opinion that day to day explanation for condoning the delay had not been given. It has further been held that the application 4 Ga 2 purports to be on behalf of Pranpati, although she was not in existence. Aggrieved by the said order, the respondents preferred Civil Revision No.90 of 2011. The revisional court has allowed the revision and set aside the order dated 29.9.2011 and has allowed the application for condonation of delay on payment of a cost of Rs.1000/-. The revisional court has held that the view taken by the trial court that day to day explanation for condonation of delay has not been given, is highly technical. It has been further noted that the suit was dismissed in default on 23.4.1991 and the application for restoration was filed on seventy fifth day and thus, there was hardly delay of 45 days, which is not much. It has been further noted that the suit was dismissed in default on 23.4.1991 and the application for restoration was filed on seventy fifth day and thus, there was hardly delay of 45 days, which is not much. The revisional court has further noted the contention of the respondents that on the date the restoration application was filed, it was not in dispute that Pranpati was alive and that the application was duly filed on her behalf. The application for condonation of delay could be filed by the counsel and there was no need for the parties to sign it. The revisional court has found the explanation given in the delay condonation application to be sufficient and has therefore, allowed the same and directed the trial court to decide the restoration application on merits. 5. Learned counsel for the petitioners vehemently contended that the application for condonation of delay does not bear the signatures or thumb impression of the Pranpati and further that the explanation given for condonation of delay was absolutely vague. 6. The revisional court has adequately dealt with these contentions raised by learned counsel for the petitioners. This Court does not find any reason to interfere with the order of the revisional court, the effect whereof is that the delay in filing the restoration application has been condoned. However, in the facts and circumstances of the instant case, the Court is of the opinion that the petitioners herein should be adequately compensated by cost. The cost awarded by the revisional court is inadequate. Accordingly, the order awarding the cost is modified. It is hereby directed that the delay condonation application shall stand allowed on payment of cost of Rs.5000/- to be paid by the respondents to the petitioners within three weeks from today. In all other respect, the order of the revisional court is maintained. Subject to aforesaid observations/modification, the petition stands disposed of.