S.P.PANDEY, J. - (1.) THIS is a second appeal preferred against the judg­ment and order dated May 7, 1996 passed by the learned Addl. Commissioner, Moradabad Division, Moradabad, arising out of an order dated February 22, 1995 passed by the learned trial Court in a suit under Section 176/209 of UPZA and LR Act.
(2.) BRIEF and relevant facts of the case are that one Charat Singh and plaintiff instituted a suit under Section 176/209 of UPZA and LR Act, implicating Nathu Singh and others as defendant in respect of the suit-land as detailed in para 2 and at the fool of the plaint. The learned trial Court has decreed the aforesaid suit and has ordered on 25-5-92 for the prepara­tion of final decree and on 26-4-93 Parowan Amaldaramad was also issued. On 15-6-93 an application was moved under Section 151/Ordcr IX, Rule 13 for setting aside the orders dated 25-5-92 and 26-4-93 with an application under Section 5 of Indian Limitation Act supported with an affidavit. The learned trial Court dis­missed the aforesaid application on 22-2-95. Aggrieved by this order an appeal was preferred. The learned Additional Com­missioner has also dismissed the appeal on 7-5-96. Hence this second appeal. I have hard the learned Counsel for the parties and perused the records on file. For the appellant it was contended that the aforesaid restoration application of the appellant was well within lime from the date of knowledge but the learned trial Court have not considered the facts and circumstances of the instant case and has erroneously dismissed the aforesaid ap­plication that the learned Addl. Commis­sioner has illegally dismissed the first appeal too as such the judgment and orders passed by the learned Courts below be set aside and this second appeal be allowed. In support of his contentions he has cited case law reported in RD 1990 page 309 and RD 1987 (SC) page 416. The learned Counsel for the respondent submitted that the judgment and order passed by the learned Courts below are quite just and proper which must be maintained that the appellant despite due notice did not file any objection before the learned trial Court in respect of the disputed holding that after the preparation of final decree in the suit the plaintiff moved the aforesaid application for restoration which is liable to be set aside being highly time barred.
(3.) I have carefully and closely con­sidered the contentions raised by the learned Counsel for the parties and have also gone through the records on file. A bare perusal of the records reveals that the learned trial Court has not properly con­sidered the material and relevant aspect-of the facts and circumstances of the in­stant case in correct perspective of law and has erroneously dismissed the aforesaid restoration application. The learned lower appellate Court has also utterly failed to examine the points at issue in the instant case and dismissed the appeal.;