STATE Vs. III ADDL DIST JUDGE AZAMGARH

JUDGEMENT

(1.) Whether the findings, which were essentially findings of fact, given by the trial Court about the 'sufficient cause', having been made out by the defendants under Order 9 Rule 13 of the Code of Civil Procedure (for short the Code) for restoring the suit, can be set aside by the revisional Court under Section 115 of the Code, or only questions pertaining to the jurisdiction could have been gone into by the revisional Court and whether the grounds for condonation of delay under Section 5 of the Limitation Act (for short the Act) could be re-examined by the Revisional Court are the short questions for consideration in the present petition filed by the defendants under Article 226 of the Constitution seeking the relief for writ of certiorari quashing impugned order dated 7-9-1987 passed by IIIrd Additional District Judge, in revision.

(2.) The portrayal of essential facts are these. The plaintiff/respondent No. 2 has filed Suit No. 337 of 1983 in the Court of Munsiff for permanent injunction restraining the defendants/present petitioners from realising the amount of pension already paid to him and the suit was decreed exparte on 27-9-1985 as the defendants, present petitioners were not present. The defendants/present petitioners filed an application for restoration under Order 9, Rule 13 of the Code accompanied by an affidavit and application for condonation of delay under Section 5 of the Limitation Act which was allowed by an order dated 31st October, 1986. Against that order plaintiff/respondent No. 2 preferred a revision which has been allowed by the impugned order. Hence present petition.

(3.) Mr. K.B. Mathur, learned counsel for the petitioners, urged that sufficient cause for non-appearance of the petitioners, as required by Order 9, Rule 13 of the Code was explained in the affidavit filed in support of the restoration application and grounds for condonation of delay in filing the restoration application were made out and explained in the affidavit filed in support of the application under Section 5 of the Limitation Act. The affidavits filed by the petitioners were relied upon by the trial Court and delay was condoned and sufficient cause was made out for restoration of the suit. These findings of the trial Court about the sufficient cause being made out for restoration of the suit and for condonation of delay in filing the restoration application, were findings of fact, even if they were perverse, could not have been set aside in revision filed under Section 115 of the Code.