- (1.) This restoration application has been filed against the order dated 23.7.2014 whereby the restoration application has been dismissed for non prosecution. The application is time barred by 29 days and an application for condonation of delay has also been filed. In the application under Section 5 of the Limitation Act, it has been stated that on 23.7.2014 when the restoration application was listed before the Court, the Advocates were on strike, the appellant came to the court but in absence of I.D. Proof, he could not enter into the Court premises and the matter has been disposed of. Further for delay it has been stated that the applicant came to know about the order only when Sukhdev Prasad submitted the copy of the order and immediately the application for restoration of restoration application has been filed, hence the delay should be condoned and the restoration application be restored to its original number. Learned counsel Mr. S.C. Gupta has submitted that he is counsel for respondent No. 2/1 Girraj Prasad as well as counsel for Sukhdev Prasad who has been allowed to be intervene in the matter and the reply on behalf of Sukhdev Prasad has also been filed. While the counsel for the appellant has objected that Sukhdev Prasad is only an intervenor, he could not file reply and further it has been stated that since 15.9.2000, the stay is continuing in his favour. The intervenor wants to grab the property, his absence is bona fide. Delay is unintentional as he was not knowing about the impugned order, hence the delay be condoned. Per contra, the contention of the respondent and counsel for the intervenor is that the application has been filed against dead person as Shanti Devi has died since long. There is no reason to condone the delay as copy of the order has been submitted before the court below on 30.7.2014 and application has been filed with false facts and should be rejected outrightly.
(2.) Heard the learned counsel for the applicant appellant and Mr SC Gupta for intervenor and for respondent No.2/1 and perused the impugned order.
(3.) It is true that Sukhdev Prasad has been allowed as intervenor. He has no right to file reply but as reply has been filed, there is no harm in considering the same. Mr S.C. Gupta who is also counsel for the respondent No.2/1 and intervenor has every right to be heard and otherwise also when advocate is before the court, objection in this regard seems to be of not good taste.;