- (1.) IN the CMP, the petitioner has prayed for restoration of second appeal No. 444 of 2003, which was dismissed for non -compliance of the peremptory order within the prescribed period. Since there was delay of 264 days in filing the CMP, an application under Section 5 of the Limitation Act being IA No. 2218 of 2006 has been filed praying for condonation of delay.
(2.) IT has been stated that by order dated 17.8.2004, one week's time was granted for removing the defects and two weeks' time was granted for filing Deficit Court -fee Stamp. It has been stated that within the prescribed period, defects were removed, but the petitioner's counsel was under impression that for filing Deficit Court -fee Stamp, four weeks' time was granted. Under that bona fide impression. Deficit Court -fee Stamp was filed within four weeks but it was beyond the prescribed period. Subsequently, on 7.5.2005, when the registry informed about dismissal of the second appeal for non -compliance of the peremptory order, the petitioner thereafter filed the CMP on 3.6.2005. It has been submitted that there was no deliberate laches and delay on the part of the petitioner and under the said circumstance beyond his control, he could not file CMP within time. Notices were issued to the respondents. They have appeared through their learned counsel. The respondents have contested the CMP as well as interlocutory application contending, inter alia that the petitioner was not diligent in taking proper steps within the prescribed period. The order was passed in presence of the learned counsel for the explanation furnished regarding the wrong impression is without any basis. It has been stated that the petitioner earlier delayed in taking steps within the prescribed period and subsequently the petitioner leisurely took steps for filing CMP after long delay. It has been stated that there is no reasonable explanation for the delay of 264 days in filing CMP.
(3.) I have heard learned counsel for the parties. Though the respondents have contested the CMP as well as application for limitation, there is no affidavit in opposition disputing the facts stated in the CMP as well as in the interlocutory application. The statements and the explanations made by the petitioner in the said petition/ application are factually uncontro -verted.;