Case Note & Summary
The petitioner, Rajendra Namdeorao Akre, filed a writ petition challenging an order dated 11.09.2014 passed by the trial court in Misc. Civil Application No.328/2012, which condoned the delay in filing a restoration application subject to costs of Rs.10,000/-. The petitioner was the original plaintiff in a suit for specific performance of an agreement dated 11.04.1991, which was decreed on 10.10.1994. The respondents (defendants) filed First Appeal No.101/1995, which was dismissed by a learned Single Judge on 02.05.2009. The Supreme Court, on 30.07.2010, allowed the respondents' appeal, set aside the Single Judge's judgment, and remanded the proceedings for fresh disposal. After remand, the First Appeal was dismissed in default on 13.06.2011. The respondents filed a restoration application on 06.07.2011, which was allowed on 14.10.2011, restoring the appeal. However, on 23.11.2011, the appeal was again dismissed in default due to the absence of the appellants and their counsel. On 15.02.2012, an application for condonation of delay in filing the restoration application was moved. The trial court condoned the delay subject to costs. The petitioner challenged this order. The High Court noted that the application for condonation of delay dated 15.12.2012 was not filed on behalf of respondent No.2, and no one appeared for respondent No.2. The court held that the delay could not be condoned without a proper application and sufficient cause. The court set aside the impugned order and allowed the writ petition.
Headnote
A) Civil Procedure - Condonation of Delay - Restoration Application - Section 5 of Limitation Act, 1963 - The court held that the delay in filing the restoration application cannot be condoned without a proper application for condonation of delay and without sufficient cause being shown. The trial court's order condoning delay was set aside as the application for condonation was not filed by the respondents and no sufficient cause was demonstrated. (Paras 1-10)
Issue of Consideration
Whether the delay in filing the restoration application was properly condoned by the trial court without sufficient cause and without a proper application on behalf of the respondents.
Final Decision
The writ petition is allowed. The impugned order dated 11.09.2014 passed in Misc. Civil Application No.328/2012 is set aside. Rule is made absolute accordingly. No order as to costs.
Law Points
- Condonation of delay requires sufficient cause
- Delay cannot be condoned without proper application
- Restoration application must be filed within limitation period
