AJANTA MERCHANTS PVT. LTD Vs. SRIPRAKASH MISHRA

JUDGEMENT

(1.) Petitioner company has invoked the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India seeking an appropriate direction for setting aside the order 21/8/2018, passed by Addl. Civil Judge II (Sr. Div.), Dehradun, in Misc. Case no. 172 of 2017, M/s Ajanta Merchants Pvt. Ltd. vs Sriprakash Mishra and others, whereby the restoration application filed by the petitioner company / plaintiff has been rejected.

(2.) Briefly put, facts of the case are that the petitioner company / plaintiff instituted Original Suit no. 543 of 2011, M/s Ajanta Merchant Pvt. Ltd. vs Sriprakash Mishra and others, in the court of Addl. Civil Judge II (Sr. Div.), Dehradun. The said suit instituted by the petitioner company / plaintiff was dismissed for non-prosecution of the parties vide order dtd. 22/7/2013 as well as on the ground that the ad valorem court fee, as per the valuation of the suit, was not paid by the petitioner company in view of the order dtd. 29/4/2013, passed by the trial court while deciding issue no. (iv) in the suit.

(3.) Petitioner company filed restoration application to restore the suit to its original number and to recall the order dtd. 22/7/2013 along with delay condonation application, as there was a delay of 1545 days in moving the restoration application. The respondent no. 1 / defendant did not raise any objection against the delay condonation application as well as the restoration application. Despite that, learned trial court rejected the delay condonation application holding that the applicant has not clarified the fact when he came to know about the dismissal of order dtd. 22/7/2013 and having considered the fact that delay is inordinate and has not been sufficiently explained, nor any document has been filed in support of the averments made therein, rejected the application filed under Sec. 5 of the Limitation Act. Consequently, the restoration application under Order 9 Rule 4 of C.P.C. was also dismissed.