MAKSOOD Vs. UPPER DISTRICT JUDGE III AZAMGARH

JUDGEMENT

(1.) Impugned herein is the order dated 18-12-2002 passed by Addl. District Judge, Azamgarh whereby two applications one paper No. 6 C2 moved for condonation of delay and another paper No. 4C 2 praying for restoration of Misc. Appeal bearing No. 100 of 2000 to its number which had been dismissed for default on 15-1-2002, came to be rejected.

(2.) According to the facts forthcoming on record, the Misc. Appeal aforestated had been set down for 4-12-2001 on which date, application for grant of time was made. Thereafter, the petitioners were intimated by their counsel that next date fixed in the case was 15-2-2002 while the date fixed in the case was 15-1-2002 on which date the appeal had already been dismissed for want of prosecution. It is stated by the learned counsel for the petitioners that when the petitioners turned up on 15-2-2002, it was cognized to them that the appeal had been dismissed for want of prosecution on 15-1-2002 and therefore, the same day the petitioners moved the two applications aforestated one for condonation of delay and another for restoration of Misc. Appeal to its number. The two applications aforestated lingered for decision before the Court and on 18-12-2002, the Court below dismissed the two applications as being time barred.

(3.) The learned counsel for the petitioners propounded that application for restoration was dismissed as barred by time notwithstanding the fact that delay of one day was too insignificant to matter considering that cogent and convincing grounds showing sufficient cause in two applications which were attended with affidavits had been set out. It was further canvassed that the substantive ground urged explaining one day's delay was that the petitioners went by information furnished by their counsel that the appeal had been fixed for 15-2-2002 and therefore, they could not turn up on the date fixed and instead, turned up in the case on 15-2-2002. Per contra, learned counsel for the Opp. Parties propped up the order stating that the applications were rightly rejected as time barred as the delay was deliberate and leniency if any in the matter would be misplaced and in antagonism of the spirit of the law of limitation.