ORDER
Umeshwar Pandey, J.
1. Heard the learned Counsel for the parties.
2. Respondent counsel is not present in spite of the list having been revised.
3. Counter-affidavit was filed on some earlier date on behalf of respondent No. 2.
4. This petition challenges the order dated 20.10.2005 restoring the suit after granting the delay condonation application under Section 5 of the Limitation Act.
5. The learned Counsel contends that the suit was initially filed by respondent No. 3 for specific performance of contract of a registered agreement of sale and the petitioner was made a proforma defendant, Since the agreement of sale was also executed in favour of the petitioner he applied to the trial court to be transposed as plaintiff and the same was allowed. The petitioner and respondents No. 3 and 4 are the real brothers. The petitioner was staying away from the village and was working in Calcutta. The pairvi of the case was being done by his brother, respondent No. 3. It is alleged that respondent No. 3 connived with respondent No. 2, the defendant, and got the suit dismissed in default and no knowledge of that was had by the petitioner till a day before moving of the restoration application. The suit was dismissed on 10.2.2000 and restoration application was given by the petitioner on 25.10.2000. The petitioner’s plea as taken for the restoration of the suit was accepted by the trial court, but the revisional court giving one or the other reasons has interfered with that order of the trial court and rejected the restoration application.
6. In the facts of present case what is most striking is that the petitioner/plaintiff was residing away from the village and was working at a far distant place like Calcutta. The contention of the petitioner that the other plaintiff Lallan had got the suit dismissed in connivance with the defendant Smt. Hira Wati further finds support from the fact that no restoration application was moved by respondent No. 3 even though he was the original plaintiff in the suit doing pairvi of the same. The agreement of sale is said to have been executed in favour of the three brothers, the petitioner and respondents No. 3 and 4. If the decree of specific performance of contract was to be obtained it would be obtained in favour of all the three. Why and under what circumstances respondent No. 3 who was made in-charge of the pairvi of the case did not take any step to go ahead and get the suit restored, is also quite striking and appears to be unnatural that he did not inform his brother the petitioner working at Calcutta about the dismissal of the suit. Therefore, the allegations of his connivance with defendant/ respondent No.2 is wholly probabilized in the circumstances prevailing in the case. The revisional court appears to have wrongly appreciated the available facts and has twisted the case to take an adverse decision against the petitioner.
7. Otherwise also the discretion exercised by the trial court for permitting condonation of delay under Section 5 of the Indian Limitation Act is not to be usually disturbed by the Court exercising revisional jurisdiction unless it is found that exercise of discretion was wholly on untenable grounds or arbitrary or perverse. In Balakrishnan v. M. Krishnamurthy , the Apex Court in such matters has propounded as below:
It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned, as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
8. In the present case also, the trial court in the aforesaid facts and circumstances had condoned the delay in filing the restoration application and had exercised its discretion in favour of the respondent plaintiff. There is nothing in the judgment of revisional court challenged in this petition, which would indicate that the trial court while accepting the grounds, had acted arbitrarily or in perverse manner. The grounds for restoration and condonation of delay as had been taken by the respondent plaintiff and as discussed above, could not be said to be wholly untenable and thus, it is quite obvious that the trial court has rightly allowed the restoration application and did not commit any factual or otherwise legal mistake as to give justifiable occasion to the revisional court to interfere in its order. In the aforesaid view of the matter the petition should be allowed and the order of revisional court should be quashed and the order of the trial court be restored.
9. In the result, the petition is allowed.
10. The impugned order dated 20.10.2005, passed by the revisional court is hereby quashed and the order of the trial court dated 17.5.2004 is restored.
