- (1.) THE short question arising in this revision is whether an application under order 9, Rule 4, C.P.C. to set aside dismissal of a suit and restore it to its original number, moved beyond the period of one month an application under Section 5 of the Limitation Act is necessary. Since the opposite party did not appear when this revision was called for hearing, it is being disposed of on merits on perusal of record and hearing the revisionist.
(2.) ADMITTEDLY , on 30 -4 -1983 the date fixed for issues the suit was dismissed for default of the parties under Rule 3 of the Order 9 C.P.C. The application for restoration of the suit under Rule 4 of Order 9 was moved on 1 -8 -1983. The said application was dismissed by the learned Civil Judge, Ballia, by the impugned order on the ground that it was barred by limitation and there was no application for condonation of delay under Section 5 Limitation Act. The contention in the grounds of revision that Section 5 of Limitation Act is not applicable to proceedings for restoration of a suit under Order 9, Rule 4 C.P.C., is untenable. The limitation for restoration of a suit dismissed for default of appearance or for want of prosecution etc. is 30 days from the date of dismissal under Article 122 of the Limitation Act. Such being the position the application moved by the revisionist was beyond time and unless there was sufficient cause for condonation of delay, the same could not be entertained or accepted.
(3.) ON facts, however, the alternative contention of the revisionist is correct that the learned lower court could not have disposed of the application for restoration, without enquiring into the question whether she was prevented by sufficient cause for appearing when the case was called on the date of hearing and till the date when the restoration application was moved.;