S.P.PANDEY, j. - (1.) THIS is a revision petition under Section 333(1) of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and order dated 22-2-2002, passed by the learned Commissioner, Jhansi Division, Jhansi, in revision petition No. 62/15/75 of 1995-96, arising out of the order dated 23-3-1995, passed by the learned trial Court, restoring the suit to its original number on payment of cost of Rs. 20/-.
(2.) BRIEFLY stated, the facts, giving rise to the instant revision petition are that after a suit under Section 229-B/176 of the Act was dismissed in default on 3-1-1994, a restoration application under Order IX Rule 9 CPC was moved by the plaintiff on 18-7-1994, after the expiry of the period of limitation alongwith an application for substitution and an affidavit. The learned trial Court, vide its order dated 23-3-1995, restored the suit to its original number, subject to payment of cost of Rs. 20/- against which a revision petition was preferred by Pratap Narain before the learned Commissioner, who has dismissed the same, vide her order dated 12-2-2002 and therefore, it is against these orders that the instant revision petition has been preferred by Smt. Asha Tandon before the Board. I have heard the learned Counsel for the parties and have also perused the record on file. The main thrust of the contentions of the learned Counsel for the revisionist are that since no application under Section 5 of the Limitation Act was filed alongwith the restoration application, the learned trial Court was not at all justified in condoning the delay in filing the same because mere assertion to this effect in the body of the restoration application as well as affidavit, without affixing the required Court-fee for the same, would not justify it and secondly, that since the order of restoration was a conditional order, subject to payment of cost of Rs. 20/- and no such cost has ever been paid by the applicant, the suit in question cannot, at any stretch of imagination, be deemed to have been restored and therefore the same cannot proceed further until and unless the condition laid down for the same is fulfilled. The learned Counsel for the opposite party, in reply, urged that in the facts and circumstances of the instant case, both the learned Courts below were perfectly justified in restoring the suit in question after condonation of delay. So far as the payment of cost is concerned, his contention is that since there is no limitation prescribed for such payment, the same can very well be paid at any time and therefore, no illegality or material irregularity has been committed by the learned Courts below in rendering the impugned orders and as such this revision petition having no force, very richly deserves dismissal outright.
(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the record on file. The crux of the matter in question are whether or not the learned Courts below in the facts and circumstances of the instant case, were justified in condoning the delay in filing the restoration application and the effect of non-payment of costs, if any. A bare perusal of the record on file clearly reveals that after the suit was dismissed in default on 3-1-1994, a restoration application was moved by the plaintiff on 18-7-94, after a lapse of about more than six months, alongwith an application for substitution and an affidavit. It is true that in the body of the application as well as affidavit, narration for the condonation of delay, if any, finds place, but the required Court-fee for the same has not been affixed thereon and therefore, the discretion, exercised by the learned trial Court in favour of condoning the delay was not at all justified. Without a prayer for the same or paying Court-fee therefor, the delay, caused in filing the restoration application cannot, at any stretch of imagination, be condoned in the eyes of law. Moreover, the order of the learned trial Court, dated 23-3-1995, restoring the suit to its original number was a conditional order, subject to payment of costs of Rs. 20/- and the contention of the revisionist is that such cost has never been paid. I also still fail to find out any evidence on the record to show that such condition has been fulfilled by the applicant. There is not even an iota on the record in this respect. It is true that no limitation is prescribed for payment of such cost but at the same time, it is also an established principle of law that until and unless such condition is fulfilled, the suit cannot be deemed to have been restored and the same cannot proceed further and in these circumstances, such an order for restoration of the suit becomes a nullity and nothing else. These aforesaid material aspects of the matter in question escaped consideration by both the learned Courts below and therefore, I, in the facts and circumstances of the instant case as well as evidence on record, am of the considered opinion that the impugned orders, passed by them, cannot, at any stretch of imagination, be allowed to sustain and this revision petition very richly deserves to be allowed.;