JUDGMENT
B.B. Deb, J.
1. The State and officials defendants assailed the order dated 20.2.1997 passed by the learned Civil Judge, (Senior Division)
Dharmanagar North Tripura in Misc. 17 of 1396 in this Civil revision under Section 115 of the CPC .
2. The Civil Judge, (Senior Division) being the trial Court declined to condone the delay sought for by the State defendant in filing the restoration petitioner under Order 9 Rule 13 CPC against the exparte decree passed on 29.3.1996 in Money Suit No. 8 of 1995 filed by one Arab Ali in Misc. 17 of 1996, as a result the restoration petition stood rejected. Against which the State Defendant preferred the Misc. appeal No. 17 of 1996 purportedly under Order 43 Rule 1 of the CPC before the learned Additional District Judge, Dharmanagar. The learned Additional District Judge not only entertained the appeal but after hearing allowed the appeal restored the suit. Against which the plaintiff preferred connected Civil Revision No. 42 of 1992 and having found the impugned order dated 3.5.1999 passed by the learned District Judge allowing the appeal without jurisdiction, this Court in CRP No. 42 or 1999 quashed the said order.
3. The State defendant though in one hand filed the aforesaid Misc. appeal before the learned Additional District Judge, Dharmanagar, on the other they preferred this Revision petition under Section 115 of the CPC. On perusal of the records it appears that the State defendants failed to contest the Money suit by filing written statement before the learned trial Court, as a result, the learned trial Court heard the matter exparte followed by exparte decree dated 29.3.1996. The State defendants filed the petition under Order 9 Rule 13 CPC on 12th August, 1996 seeking for setting aside the exparte order dated 29.3.1996 and for restoration of the suit. That petition though filed after expiry of the period of limitation has not been accompanied by any condonation petition. However, the learned Trial Court registered it as Civil Misc. 17 of 1996. After a month the State defendants filed a condonation on petition under Section 5 of the Limitation Act on 24.9.96.
4. The trial Court recorded the evidence of the defendants and after hearing the parties on 20.2.1997 declined to condone of delay and, as a result dismissed the restoration petition. Against that order, instead of preferring Revision under Section 115 of the CPC the State defendants. Misc. appeal under Order 43 Rule 1 CPC before the learned Additional Sessions Judge, Dharmanagar though not permissible but allowed by the learned Additional Sessions Judge as has already been mentioned.
5. Rejection of condonation petition filed in preferring the belated restoration petition under Order 9 Rule 13 undoubtedly entails rejection of restoration petition. Instead of using the term ‘rejection’
the learned trial Court used the term ‘dismissal’ of the restoration petition and taking that advantage of the order of dismissal of the restoration petition the learned Additional District Judge entertained the appeal under Order 43 Rule 1 of the CPC which is not permissible. Dismissal of restoration petition not on merit but as a consequence of the rejection of condonation petition is not appealable under Order 43 Rule 1 CPC. The real implication of such dismissal of restoration petition would, be nothing but an act of refusal to entertain a time barred restoration petition and therefore, such order is only revisable under Section 115 of the Civil Procedure Code.
6. Perhaps having realised tills legal consequences, the State defendants filed the present revision petition challenging the order dated 20.2.1997. On perusal of the condonation petition it appears that though the order of exparte decree dated 20.2.1997 was passed in presence of the learned counsel for the State defendants on 29.3.1996. According to the condonation petition, the State defendants could come to know the same only on 7.8.1997. In the trial Court, the State Government has Panel Lawyers beside one Additional Government pleader, and as such it is not at all believable that the State defendants came to know of the fact of exparte decree long after four months on 7.8.1997. In the present case beside the State Government, District Magistrate, North Tripura, S.D.O. Kanchanpur, Divisional Forest officer, Kanchanpur had bean party defendants. The reasons set forth seeking condonation are available in para 2, 3, 4 and 5 of the condonation petition. From the aforesaid paragraphs, it reveals that the state defendants made an attempt to explain the reason why they could not filed the written statement, as to why they failed to participate in the hearing leading the suit to be decreed exparte on 29.3.1996, but there is no reason spell out at all as to why they consumed more than four months time in preferring a petition under Order 9 Rule 13 CPC seeking setting aside of the exparte order. Law requires proper explanation justifying the delay caused before invoking the jurisdiction of the Court. But, unfortunately the state defendants cared little to spell out any reason showing how the defendants ware prevented for sufficient cause from filing the restoration petition within the time prescribed under the Limitation Act. With such callousness the defendants cannot expect leniency to be extended to them in condoning the delay and, as such, in my considered opinion, the learned trial Court rightly rejected the condonation petition.
7. In exercise of discretionary power dealing with condonation petition, in my considered opinion, the learned trial Court committed no illegality and had rightly passed order within his jurisdiction and
having applied his judicious approach to the facts put before him and, as such, I am constrained to dismiss the revision petition. Order passed by the learned trial Court dated 20.2.1997 rejecting the condonation and as a consequence dismissing restoration petition stand. No order as to costs.
