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Mahaveer Singh v. Udaiveer Singh And Another - WRIT - C No. 36340 of 2006  RD-AH 11957 (21 July 2006)
Court No. 23
Civil Misc. Writ Petition No. 36340 of 2006
Mahaveer Singh Vs. Udaiveer Singh & another
Hon'ble Umeshwar Pandey, J.
Heard learned counsel for the petitioner.
Petitioner's Appeal No. 182 of 1987 was dismissed on 14.7.1999. He could not have the notice of the said dismissal of the appeal till 2000 when he received a notice of the execution Case No. 99 of 2000. The petitioner thereafter changed the counsel and the new counsel filed his vakalatnama on 18.10.2002 in the execution case. His counsel has moved an application for inspection of record in the last week of May, 2003, where after on 22.9.2003 the restoration application along with delay condonation application was moved in the court. The court not finding justifiable grounds to condone the delay, has dismissed the petitioner's application under Section 5 of the Indian Limitation Act and consequently, his restoration application has also been dismissed by the impugned order dated 4.4.2006 (Annexure-5).
A perusal of the application under Section 5 of Indian Limitation Act (Annexure-4) filed along with petition shows that in-spite of having notice of the dismissal of the suit in October, 2002, the restoration application could not be moved for about 11 months and no cogent explanation of such delay was given by the petitioner before the court below. In such cases, when the petitioner acquires knowledge of the order of dismissal and if the restoration application is moved after about a year, each and every date of such delay has to be explained by the petitioner before the court to get the benefit of Section 5 of Indian Limitation Act. In the present case, the petitioner has failed to do so and the burden of proof as lay upon him, has not been discharged. It is in this view of the matter that the restoration application has been dismissed by the appellate court. I do not find any infirmity in the order so passed and accordingly no interference is possible against it under Article 226 of Constitution of India.
The petition having no force is hereby dismissed.
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