- (1.) Heard learned counsel for the petitioner.
(2.) O.S. no.206 of 1985 Doka Vs. Hadis was dismissed on 4.4.1989 by the following order: "None present nor steps taken Order Suit is dismissed for non compliance." (Learned counsel for the defendant petitioner states that earlier plaintiff had been directed to pay deficiency in court fees.) Thereafter restoration application was filed under Order IX Rule 4, C.P.C. on 7.7.1989 i.e. after three months. The said application has been allowed on 8.5.2009 by Additional Civil Judge (J.D.) Kasya, Kushinagar. The case had been registered as misc. case no.58 of 1991. Against the said order petitioner filed Civil Revision no.53 of 2009 Hadis Vs. Raj Kishore and others A.D.J. Court no.3, Kushinagar dismissed the revision on 21.2.2013 hence this writ petition.
(3.) The argument of learned counsel for the petitioner is that restoration application under Order IX Rule 4 C.P.C. was not maintainable. Nomenclature is not decisive. The other argument is that application was not accompanied by delay condonation application. In the restoration application it was mentioned that the house of the plaintiff had been burnt and he was ill. Even though separate application for delay condonation was not filed however in the restoration application sufficient explanation for delay had been given. The reliance of learned counsel for the petitioner on Supreme Court Judgment reported in Ragho Singh Vs. Mohan Singh, 2000 LawSuit(SC) 667 is misplaced.That was a case where appeal had been filed beyond time without delay condonation application. Moreover as on 4.4.1989 defendant petitioner was himself absent.;