- (1.) HEARD Sri Anuj Kumar, learned counsel for the petitioner and Sri Rajeev Mishra, learned counsel for respondent No.4.
(2.) THE respondent No.4, plaintiff filed a suit for permanent injunction against the petitioner defendant. 02.02.1998 was the date fixed for evidence of the defendant but the learned counsel for defendant could not appear. Accordingly, the suit was ordered to proceed ex parte and the same was decreed ex parte. An application under Order IX Rule 13, C.P.C. was filed for setting aside the ex parte decree and restoration of the case, which was registered as Misc. Case No.18 of 1998. The said misc. case was listed on 07.05.1999 and was dismissed on the same day for non -prosecution as the defendant's counsel did not appear. An application for restoration of the Misc. Case No.18 of 1998 was filed, which was registered as Misc. Case No.62 of 1999. This application was filed on 07.09.1999, i.e. four months after dismissal of the Civil Misc. Case No.18 of 1998. The Misc. Case No.62 of 1999 was dismissed on 01.09.2000. Aggrieved against the order dated 01.09.2000 and the order dated 07.05.1999 as also the order dated 02.02.1998, the present writ petition has been filed.
(3.) THE submission of the learned counsel for the petitioner was that the restoration application, i.e. Misc. Case No.62 of 1999 was wrongly dismissed taking a very strict view of the matter. The reasons for rejection as contained in the impugned order dated 01.09.2000 are not at all sustainable. The delay of four months in filing the application was not such, which could not have been condoned keeping in view the fact that the applicant was the State and normally in matters pertaining to the State, sufficient time is consumed on account of very nature of the functioning. He submitted that valid explanation was given in the plaint for restoration for the delay in filing the same. The then D.G.C. had informed the Pradhan that the judgment had been reserved on 07.05.1999 and the same had not been pronounced. This situation continued upto 24.08.1999, when the Pradhan was informed that the case will be looked after by the new D.G.C. (Civil), Ghaziabad. On contacting the new D.G.C. (Civil) on 24.08.1999, the Pradhan was informed that the case had already been dismissed on 07.05.1999. Thereafter, the application for restoration was prepared and was filed on 07.09.1999. Cause shown for the delay was sufficient and learned court below has erred in rejecting the said restoration. Apart from it, no other arguments have been raised by the learned counsel with regard to the challenge to the other orders referred hereinabove. Sri Rajeev Mishra, on the other hand, submitted that no application for condonation of delay in filing the restoration application was filed nor any prayer was made for condoning the delay. Only an explanation was submitted in the application for restoration regarding the delay, unsupported by any affidavit. In the absence of any affidavit in support of the application for restoration and in the absence of any application for condonation of delay supported by an affidavit, the genuineness and veracity of the facts could not be vouched for. Relying upon the judgment Kedar and others Vs. Assistant Director of Consolidation and others, 1987 2 AWC 1385 he submitted that the sufficiency of cause was one thing and truthfulness of the cause was entirely another matter. In matters relating to sufficiency of cause, the courts take a lenient view but where the truthfulness of the averments itself is not established, then no leniency is permissible. Learned counsel also relied upon another judgment of the Supreme Court in the case of P.K. Ramchandran Vs. State of Kerla and another,1998 89 RevDec 18 in support of his contention that the limitation cannot be extended on sympathetic grounds and the law of limitation has to be applied with all its rigour.;