NARENDRA NATH TIWARI, J. - (1.) HEARD the parties.
(2.) IN this revision application the petitioners have assailed the legality and correctness of the order dated 30th of April, 2005 passed by Sub Judge I, Ranchi in Miscellaneous Case No. 1 of 1996 whereby the application for restoration of the suit under the provisions of Order IX Rule 4 read with Section 151 of the Code of Civil Procedure has been dismissed. From perusal of the record it appears that the application for restoration was time barred, but in that application a composite prayer was made for condonation of delay as prayer No. 1 and for restoration. The said application was registered as Miscellaneous Case No. 1 of 1996. Notice was issued to the opposite parties who contested the said miscellaneous case. Since the petition for restoration was filed after a delay of about 6 months, the petitioners in the said composite application had explained the reason for delay stating, interalia, that due to illness of his son, whose condition has become critical, he had to go to different places including a far off place in Madras for his treatment. The opposite parties in their reply, while contesting the said petition, had not controverted the said statement relating to the explanation of delay on account of the treatment of his son at different places. The petitioner, thereafter, examined himself and has proved the statement made in the petition. No evidence in rebuttal was led by the defendants -opposite parties. Learned court below has noticed the said fact that no oral or documentary evidence was led on behalf of the opposite parties. However, the Court below observed that though the petition for restoration was time barred, no separate petition under Section 5 of the Limitation Act was filed praying condonation of delay. Learned Court below has further observed that in his view there was no sufficient cause explained by the petition for restoration. He further observed that the petitioners had failed to file any medical proof in support of the ground of illness of his son taken by him and on the said' counts the Court below dismissed the said miscellaneous case.
(3.) MR . P.K. Prasad, learned counsel appearing on behalf of the petitioners submitted that learned Court below has committed serious errors in making the said observation and dismissing the miscellaneous case of the petitioners on technical ground and without applying judicial mind. Learned counsel submitted that the petitioners had categorically made a prayer for condonation of delay in the prayer No.1 of the petition itself and there is no bar in filing a composite petition praying two reliefs. Learned counsel submitted that he had shown sufficient reason for condonation of delay, but the same has been rejected on the ground that the plaintiffs had not produced the medical documents in support of the illness of his son, whereas the statement made by the petitioners was not disputed by the defendants -opposite parties in their reply and the same was not even required to be proved. The petitioner who examined himself as A.W.I has supported the said fact stated by him in the petition. there was no evidence in opposition to rebut the said statement/evidence of the petitioners. He further submitted that the petitioners were informed by the counsel, but the Court below has questioned as to how the plaintiffs came to know when there was no inspection slip on record. Summing up, learned counsel submitted that the order of the learned Court below is wholly unfounded and based on conjectures and assumptions and is wholly erroneous and liable to be set aside.;