NIHAAL SINGH AND OTHERS Vs. SANTRESH DEVI

JUDGEMENT

(1.) The petitioners have challenged the order dated 04.01.2017, passed by the Additional Commissioner, Garhwal Division, Pauri in Revision No. 4 of 2015-16, by virtue of which, the Revisional Court, while dismissing the revision of the petitioner, has affirmed the order dated 29th February, 2016, passed by the Teshildar, Kotdwar in Case No. 108 of 2012-13, whereby, as a consequence thereto, the section 5 application, which the respondent has filed, seeking recall of the order dated 17th December, 1992, passed in Case No. 532 of 1991-92, was sought to be recalled after a lapse of a period of 20 years, has been allowed.

(2.) The recall application filed by the petitioners was supported by Section 5 Application. At this stage, we are only concerned with the application under Section 5 as the restoration application has not yet been determined by the Courts below, though, legally consequence would be that recall is yet to be decided, as in revision only order passed under Section 5 was challenged. In the application, thus, filed by the respondent, under Section 5 of the Limitation Act, he has simply pleaded that they could get the knowledge of the order dated 17th December, 1992, only on 24th May, 2013, and thus, they contended that they have not committed any deliberated mistake in putting appearance and not filing recall application within time. What is relevant to be seen is, in the pleadings of Section 5 Application, the respondent has pleaded the knowledge to be attributed to them on 24th May, 2013. But the application for recall as well the delay condonation application itself was filed before the Court of Tehsildar, for the first time, on 5th August, 2013, yet again, beyond a period of 30 days as provided for seeking recall of the order.

(3.) Even the pleadings which have been raised in Section 5 Application, do not repose much confidence to this Court, the reason being, that the respondent had already instituted a suit, being suit No. 111 of 2012, before Civil Judge (Junior Division), Kotdwar, Garhwal in relation to the same property. The said suit was instituted on 8th October, 2012.