- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order dated 1-10-1999 rejecting the application for restoration and application for condoning the delay in filing of such application.
(2.) THE facts in brief are that the plain tiff-respondent filed a suit for recovery of the arrears of rent, ejectment and damages against the petitioner. THE trial Court decreed the suit in the year 1994. THE petitioner preferred a revision against the said order. During the pendency of the revision the plaintiff-respondent died and application for substitution was filed and petitioner was required to take steps. The Court had fixed on 23-2-99 and the revision was dismissed on 19-4-1999 for non-prosecution. On the date fixed nor the petitioner nor his counsel was present in the Court. The petitioner filed an applica tion to recall the said order on 7-7-99 alongwith the delay condonation applica tion and affidavit. The objection was filed. The respondent No. 2 has rejected the application. It was stated that the petitioner is an employee in the Railway. On the ground of the mistake of clerk of the counsel could not note the correct date of appearing in the Court or taking a plea. The Court has rejected the application on the ground that the petitioner was negligent in proceedings with the case. He had not filed an affidavit of clerk of counsel. It may be that the petitioner had not filed affidavit of clerk but his version that he was misled fry his clerk has not been disbelieved by the Court.
(3.) CONSIDERING the facts and cir cumstances of the case, the writ petition is allowed. The order dated 1- 10-1999 is hereby quashed. In the interest of justice, the application for restoration is accepted subject to payment of Rs. 5,000/- as costs payable within three weeks from today. Sri B. N. Agarwal, learned counsel appearing for the respondents No. 1 to 4 had made a statement that he will file vakalatnama on behalf of D. D. Chaurisiya, respondent No. 1.;