- (1.) V. K. Shukla, J. Present writ petition has been filed by the petitioner challenging the order dated 18-10-1994 (Annexure-9 to the writ petition), by means of which revision preferred against the order dated 14-2- 1992 allowing application under Section 5 of the Indian Limitation Act by Additional Civil Judge has been set aside.
(2.) BRIEF background of the case, as mentioned in the writ petition is that respondent No. 2 filed Original Suit No. 947 of 1986 for recovery of an amount of Rs. 72,000 plus interest thereon. The aforementioned suit was decreed ex-parte by order dated 30-4-1988, and the decree in question was put to execution, being Execution Case No. 8 of 1991. Petitioner after acquiring knowledge of the aforementioned ex- parte decree moved an application for restoration supported by an affidavit on 21-3-1999. Along with the aforementioned restoration application, an application under Section 5 of the Limitation Act supported by affidavit was also filed for condoning delay in moving the restoration application. The aforementioned restoration application and the delay condonation application were rebutted by the plaintiff by filing counter-affidavit. The trial Court after considering the claim of the parties allowed the application under Section 5 of the Limitation Act on payment of cost of Rs. 150/- by means of order dated 1-9-1992. Revision preferred against the order allowing delay condonation application having been allowed on 18-10-1994 by the learned X Additional District Judge, present writ petition has been preferred. On presentation of the afore- mentioned writ petition before this Court, this Court passed an interim order staying execution of the ex-parte decree. Subsequently, the aforementioned interim order was confirmed by this Court. Counter-affidavit has been filed on behalf of Neelam Vihar Awas Sahkari Samiti Ltd. justifying passing of the ex-parte decree, and it has also been sought to be averred that the order passed by the Revisional Court is totally justifiable, and requires no interference by this Court. Sri Swaraj Prakash has appeared on behalf of the petitioner, and on behalf of contesting respondents, Sri Haider Zaidi has entered appearance.
(3.) SRI Swaraj Prakash, learned Counsel for the petitioner, has contended that once the trial Court had exercised its discretion by condoning the delay, then by no stretch of imagination, discretion should have been disturbed, and further allowing of application under Section 5 of the Limitation Act did not amount to case decided and revision itself was not maintainable, as there was no failure of jurisdiction on the part of the trial Court. SRI Haider Zaidi, learned Counsel for the respondents on the other hand, refuted the submission of the learned Counsel for the petitioner and submitted that the view has been taken by the trial Court was perverse, as such Revisional Court has rightly exercised its authority and rightly set aside the order of the trial Court. From the pleadings of the parties, this fact is undisputed that ex parte decree was passed and the same was put for execution. Thereafter, restoration application was moved on 21-3- 1999 supported by an affidavit and the application under Section 5 of the Limitation Act. Trial Court allowed the application on the ground that the applicant had no knowledge, and no information had been furnished by the concerned counsel and as there was no contrary evidence available on record, the trial Court taking liberal view of the matter condoned the delay. The Revisional Court reversed the order of the trial Court holding that on account of fault of the counsel, applicant cannot take any benefit. The view which has been taken by the Revisional Court, on the face of it, appears to be incorrect, inasmuch as, once the trial Court had exercised its discretion, then it was wholly improper on the part of the Revisional Court to have interfered with the aforementioned discretion without there being any lawful foundation and basis for the same. The order passed by the Revisional Court clearly suggest that it's endeavour was to find fault in the explanation which had been furnished, whereas the trial Court in exercise of its discretion had proceeded to condone the delay, which was in the direction of advancement of justice. In the facts of the present case, the order of Revisional Court is not justifiable order, and deserves to be quashed.;