- (1.) S. U. Khan, J. In spite of sufficient service as per office report dated 15. 10. 2004 no one has appeared on behalf of contesting respondents No. 2 to 5.
(2.) HEARD learned Counsel for the petitioner. Petitioner's appeal being Appeal No. 17 of 2000 was dismissed in default on 23. 5. 2001 by District Judge, Chandauli. Thereafter on 1. 2. 2002, petitioner filed restoration application, which was registered as Misc. Case No. 15 of 2002, Shanta v. Virendra. District Judge Chandauli through order dated 9. 8. 2003 rejected the restoration application, hence this writ petition. Restoration application was accompanied by application for condonation of delay under section 5 of Limitation Act. Through the impugned order, it was held that the delay was not sufficiently explained. Petitioner had stated in his delay condonation application and affidavit filed in support thereof that in connection with business (rozgar) he had gone to Bihar after instructing his Counsel to appear on the date fixed in the case which he did not do hence on 23. 5. 2001, the appeal was dismissed in default. It was further stated that on 30. 1. 2002 petitioner returned to Chandauli.
(3.) LEARNED District Judge, held that petitioner did not file any evidence to prove the said assertion /averments made in the affidavit. In restoration matters affidavit is sufficient evidence. Appellate Court further held that other three brothers of petitioner No. 1 were also appellant, hence, they could also do pairvi. In this regard case of the petitioner No. 1 was that only he was doing pairvi in the appeal. On behalf of petitioner an authority of Supreme Court reported in N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222 was cited. Court below observed that in the said authority, it was held that if Advocate did not inform his client then it was sufficient ground for condonation of delay. Learned District Judge further opined that the principle of the said authority was not applicable to the facts of the case. In my opinion the view taken by the Appellate Court is erroneous in law. In delay condonation and restoration matters Court should not be very strict Vide Collector v. Katiji. 1987 (13) ALR 145 (SC);