SIBGHAT ULLAH KHAN,J. - (1.) LIST revised. No one appears for the respondent. Heard learned standing counsel for the petitioner.
(2.) A suit (O.S. No.209 of 1980) for permanent injunction filed by late Sri Baldev, husband and father of of respondents No.3 to 10 was decreed ex parte on 29.05.1981 by Additional Munsif, Ballia. Petitioner filed restoration application on 03.10.1981, which was registered as Misc. Case No.83 of 1981, State of U.P. and another Vs. Baldev. Additional Munsif-III, Ballia rejected the restoration application on 18.10.1988. Against the said order, petitioner filed Misc. Civil Appeal No.231 of 1988. District Judge, Ballia dismissed the appeal on 29.04.1992, hence this writ petition. The courts below held that as petitioner had appeared in the suit, hence limitation for filing restoration application was 30 days from the date of decree and knowledge of decree was immaterial. To that extent, the view taken by the courts below is quite in accordance with Article-123 of the Limitation Act according to which limitation of 30 days to set aside an ex parte decree starts from the date of decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. However the lower appellate court further held that neither in the restoration application nor through any other application, delay was explained. Even though there was no separate application for condonation of delay, however in the restoration application, copy of which is Annexure-III to the writ petition, there was sufficient explanation of delay. It was stated therein that due to communication gap between different officers/ officials of the State, no one could appear and the State came to know about ex parte judgment and decree on 23.09.1991.
(3.) IN my opinion, both the courts below have taken too technical view. In the matter of delay condonation and restoration matters, some lenient view is always desirable. Moreover delay was not inordinate.;