P.S. Patwalia, J. - (1.) By way of the present revision petition the Union of India is challenging the order dated 17.08.2002 vide which the application under Section 5 of the Limitation Act for restoration of the first appeal dismissed in default, was rejected.
(2.) The Union of India and the Defence Estates Officer, Jalandhar Cantt. had filed the appeal against the judgment of the learned Additional Civil Judge (Senior Division), Fazilka whereby a suit filed by the plaintiff was decreed for recovery of Rs. 25,022/- for damages and also compensation was granted. It was the case of the petitioner herein that the land had been occupied by the Army for construction of a bandh which was necessary for the security of the country and as such the Army was competent to occupy any land for the said purpose.
(3.) The appellant had contended before the lower appellate Court that this appeal against the aforementioned judgment was dismissed in default on 7.11.1997. That appeal had been filed and was being pursued by Shri M.L. Chugh, Additional Standing Counsel. In July 1997 one Shri Raj Pal Singh Gill, Advocate was appointed as Additional Standing Counsel, Ferozepur. Due to delay in handing/taking over the charge by the respective Additional Standing Counsel, the newly appointed counsel could not attend the Court on 7.11.1997 and hence the appeal was dismissed in default. The absence was neither deliberate nor intentional but due to the circumstances beyond his control. It was further staled that the department had requested the Additional Standing Counsel to file an application for restoration of the appeal. However the counsel did not file any application for restoration nor did he intimate that fact to the department. Since the appellant is a big department it could not immediately ascertain the lapse. It was however prayed that in order to avoid any loss to the department it is desirable and in the interest of justice that the appeal should be decided on merits. The application was rejected by the learned Additional District Judge with the following observations : "The above said deponent has tried to make his deposition about the facts pleaded in the application. No cause what to say of sufficient cause has been proved by the appellant/applicant for condoning the delay in filing the application for restoration of the appeal. In fact the appeal itself was filed after limitation and only the notice of the application filed under Section 5 of the Limitation Act for condonation of delay was issued to the respondents on 7.11.97. No one appeared on behalf of the appellant as a result of which that application as well as the appeal was dismissed in default. The application for restoration of only the appeal was filed and no application was filed for restoration of the application under Section 5 of the Limitation Act. That application was filed on 29.9.2000 i.e. after expiry of almost three years. It was obligatory on the part of the appellant/applicant to prove that there was sufficient cause for condoning that delay. The only cause shown by it is that it appointed new standing counsel but no evidence has been produced as to on which date the new standing counsel was appointed and why he did not appear in the appeal. There is no ground for condoning such a long delay of three years and the application is hereby dismissed." ;