The court emphasized the importance of considering and deciding on the application for condonation of delay before allowing a miscellaneous application for restoration.

The order under challenge in the present revision was passed, on 20.11.2001, by the learned Civil Judge (Junior Division), Bongaigaon, in Misc, (J) Case No. 12/2001, arising out of Title Suit No. 02/2000, directing restoration of the suit aforementioned.

2. In a nutshell, material facts leading to this revision may be stated as follows:-

(i) The opposite party instituted, as plaintiffs, Title Suit No. 02/2000 aforementioned and the same was dismissed for default on 03.07.2001. The plaintiffs filed an application, on 06.08.2001, under Order 9 Rule 9 CPC in the learned Court below seeking restoration of the suit on the ground that there was mistake on the part of the Advocate's Clerk in taking down the date fixed in the suit and as a result thereof, no steps could be taken on 03.07.2001 on behalf of the plaintiffs and the suit was dismissed for default and that the plaintiffs came to know about the same on 19.07.2001. This application gave rise Misc, (J) Case No. 121 2001. The plaintiffs also made an application under Section 5 of the Limitation Act seeking condonation of delay in filing the application under Order 9 Rule 9 CPC on the ground that their engaged advocate was away from the station and that on his return only, the petitioners could take steps for filing the application for restoration.

(ii) The opposite party, as defendants, filed their objection against the application for restoration of the suit and also against the plaintiffs' application seeking condonation of delay.

(iii) In support of their application for restoration aforementioned, the plaintiffs examined two witnesses and, upon hearing the learned counsel for the parties, learned trial Court passed the impugned order restoring the suit. Feeling aggrieved, the defendants have come before this Court with the help of the present revision petition.

3.1 have perused the materials on record including the impugned order. I have heard Mr. S.S. Sharma, learned counsel for the defendants-petitioners, and Mr. B.K. Goswami, learned Senior advocate appearing on behalf of the plaintiffs-opposite party.

4. It has been submitted by Mr.S.S. Sharma that a bare reading of the impugned order will reveal that the learned trial Court restored the suit without condoning the delay in making the application for restoration of the suit. It is also submitted by Mr. Sharma that without condoning the delay, the learned trial Court lacked jurisdiction to deal with, and dispose of, the petition for restoration and, hence, the impugned order needs to be set aside.

5. While controverting the above submissions made on behalf of the petitioners, Mr. Goswami has not disputed the fact that without condoning the delay, the learned trial Court lacked the jurisdiction to entertain and dispose of the petition for restoration. What Mr. Goswami submits is that there was delay of barely two days in filing the application for restoration and if the impugned order is carefully read, it will appear, according to Mr. Goswami, that though the Court did not specifically condone the delay, the Court appear to have felt satisfied that the delay of two days deserved to be condoned and it shall be treated to have condoned the delay in filing the application for restoration. It is also submitted by Mr. Goswami that since the learned trial Court had jurisdiction to condone the delay and it restored the suit, it may be presumed to have condoned the delay.

6. Support for his above submissions is sought to be derived by Mr. Goswami from the case of Abdul Gaffar and others -Vs- Gavas Singh and others, reported in AIR 1967 Patna 360 (FB).

7. Before entering into the rival submissions made before me on behalf of the parties, it needs to be noted that the decision in Abdul Gaffar(supra) does not lay down any general principle of law on the subject of condonation of delay. This decision shall, to my mind, be kept confined to the facts of the case.

8. It may be noted that in Abdul Gaffar(supra), when the appeal ca