The court established that substantial delays in restoration applications require rigorous justification, ensuring all parties are afforded the opportunity to participate and contest effectively.

JUDGMENT :

M.S. JAWALKAR, J.

1. Rule. Rule made returnable forthwith.

2. Heard learned Counsel for both the parties.

3. The present Petition is filed challenging the order dated 20/10/2021 passed below Exhibit 1 in M.J.C. No. 196/2021, by the learned 18^th Joint Civil Judge Senior Division, Nagpur.

4. The Respondent No. 1 i.e. Applicant in M.J.C. No. 196/2021 has filed the Special Civil Suit No. 956/2011 and the said Suit is dismissed in default on 31/01/2017. It is the contention of the Applicant before the learned Trial Court in the Application for condonation of delay that his Advocate has not intimated about the dismissal of the Suit in default and after enquiry, in the month of September, 2020 with his Counsel, it was informed that the Suit is dismissed. Till September, 2020, he was under the bonafide belief that the Counsel is prosecuting the matter before the learned Civil Court properly and diligently. He, thereafter, applied for certified copy and along with the medical certificate, filed the Application for condonation of delay. It is his contention that he is physically handicapped person and has undergone one major heart surgery. He has also submitted that the Court Proceedings were affected due to the pandemic Covid-19. It appears that on the basis of the documents filed along with the Application and on the basis of the submissions, the M.J.C. No. 196/2021 came to be allowed and the delay in filing the Restoration Application was condoned.

5. Learned Counsel for the Petitioner submitted that in fact, there is a delay of five years, but on deducting the days of Covid pandemic, the delay is of 1473 days. However, the same has not been considered by the learned Trial Court. It appears that in the concluding Paragraph of the impugned order, the learned Trial Court observed that the MJC has already been registered and the parties are at liberty to lead evidence for restoration of the Special Civil Suit No. 956/2011. It also appears from the record that one pursis is filed by the Applicant stating therein that the Applicant has already filed an Application for condonation of delay and relied on several documents. The reason for the delay and restoration of the Suit are identical one, therefore, the documents were filed on record along with the Application for restoration on affidavit be considered for restoration application. It is also stated in the said Pursis that the Applicant does not want to lead any further evidence on the point of Restoration Application. It appears from the Roznama placed on record (Page 100) that the learned Trial Court, on the same day, posted the matter on 09/10/2021 for evidence of the N.A. On 09/10/2021, Counsel for the Applicant was present, however, Counsel for N.A. was not present and the matter was posted on 12/10/2021. On 12/10/2021, the matter was kept for arguments on 20/10/2021. On 20/10/2021, the impugned order came to be passed. In the order dated 04/10/2021 passed on the Application for condonation of delay i.e. M.J.C. No. 196/2021, the same MJC number is appearing in the order dated 20/10/2021 for restoration. In fact, after the delay in filing the Restoration Application has been condoned, the Application for restoration ought to have been registered separately, however, it appears that there is neither separate registration number to the Restoration Application nor any notice of such registration of the Application for restoration was issued to N.A. Though the learned Trial Court observed in the impugned order that it was the duty casted upon both the Plaintiff and his Counsel to remain present and conduct the matter by taking due steps, however, it further observed that the fact of dismissal of the Suit was detected by the Plaintiff only after his s