NARASINGH BARIHA Vs. ABHIMANYU BEHERA

JUDGEMENT

(1.) Heard Mr. Sahu for the petitioner and Mr. Mohapatra for the O. P. on the question of condonation of delay. There is a total delay of 295 days in the presentation of this revision application on behalf of the defendant challenging the finding rendered on 22-11-1979 by the learned subordinate Judge that the suit is maintainable. Ordinarily I would have refused to entertain the application for condonation of the long delay, but for these special circumstance. The suit in which the impugned order was passed was dismissed for the opposite party's default on 10-1-1980. An application for restoration of the suit was allowed on 12-12-1980. On 14-1-1981 this revision application challenging the order dated 22-11-1979 has been filed. Petitioner's stand is that the rait having been dismissed on 10-1-1980 and- the dismissal having remained effective till 1212-1980, petitioner had no scope to challenge the impugned order during the period the suit stood dismissed. The whole suit having been dismissed, it was of no use to the defendant-petitioner to assail the finding on the issue as to maintainability. Before the dismissal, 48 days had elapsed. After the restoration, petitioner has been in this Court within 33 days. The total period taken excluding the period when the suit stood dismissed thus works out to about 80 days. If the period during which the suit had been dismissed is excluded, petitioner is within the statutory period of 90 days.

(2.) Mr. Mohapatra appearing for the other side relying upon a Bench decision of Andhra Pradesh High Court in the case of N. Rami Reddi v. N. Padma Reddy, AIR 1978 Andh Pra 30 says that with fee restoration of the suit interlocutory orders are restored and it was rpen to the defendant at the time of restoration to contend that the restoration should have been made conditional so as to make the finding regarding the issue of maintainability stand dissolved and a fresh finding should have been called for or the Court while ordering restoration should have given direction as to the question of limitation.

(3.) I am not at all impressed by the argument of Mr. Mohapatra. It is the plaintiff who by his negligence had brought about the dismissal of the suit and he cannot again be heard to contend that the defendant should have suffered the prejudice on account of his negligence. The delay is condoned.