- (1.) This order will dispose of two applications, one, filed under Section 5 of the Limitation Act seeking condonation of the delay in filing restoration application, and the other, filed under O. 41 R. 19, C.P.C. seeking restoration of S.B. Civil Second Appeal No. 40/1981 which was dismissed in default on account of the absence of the learned counsel for the appellant.
(2.) The restoration is sought on the grounds that Dr. M.M. Tewari, advocate for the appellants-applicants was in hospital for his treatment during the period, prior to & after 10.8.88, and Dr. S.K. Tewari, other counsel for the appellants, was out of station for a couple of months, and thereby, both of them could not attend the court on 10.8.1988; and that, the applicants were told by their counsel that disposal of their appeal would take its own course and time because of backlog of pending cases before the Court, therefore, they would be informed as and when their presence would be required in court, thereby they need not to appear on each and every date of hearing, and further, that, on account of indisposition of Dr. M.M. Tewari and absence of Dr. S.K. Tewari at Jaipur, the applicants could not be informed of the date of hearing, thereby the applicants could not make themselves present in court on 10.8.1988. Taking the aid of the aforesaid contention, Dr. M.M. Tewari contended that the absence of the applicants was bonafide, and beyond their control.
(3.) As to the knowledge of the dismissal of the appeal, to the applicants, it has been urged that when son of the applicants had gone to the court of Munsif & Judicial Magistrate, Jhunjhunu on 2.11.1991 in some other case, then it came to his notice that some ex-parte order was passed by the Magistrate in an execution case, therefore, he applied for furnishing copy of various orders in execution case the very day and the copies were furnished to him on 13.11.1991 while it came to his notice about an order of dismissal of the second appeal on 10.8.1988 in default. Thereupon, their counsel was contacted and apprised of the aforesaid order of dismissal and immediately thereafter on 15.11.1991, the restoration application has been filed after 3 years & 66 days, alongwith an application under Section 5 of the Limitation Act, duly supported by advocate, Dr. M.M. Tewari's affidavit. Affidavit of Vinod Kumar son of the applicants has also been filed.;