The court established that a formal application for condonation of delay is not mandatory under Section 5 of the Limitation Act, allowing for discretion in restoring applications.

ORDER

1. This revision petition is directed against the order dated 03.12.2018 passed by the Civil Judge, Nimbahera, District -Chittorgarh ('the trial court'), whereby the application filed by the respondents for restoration of application under Order XXXIX, Rule 2A CPC, has been allowed.

2. The respondents had filed an application under Order XXXIX Rule 2A CPC alleging violation of temporary injunction granted by the trial court. During pendency of the proceedings, on 23.11.2016, when the matter was fixed for evidence of the respondents, neither they were present nor their counsel was present and as such the application filed under Order XXXIX, Rule 2A CPC was dismissed for non-prosecution.

3. Application was filed on 18.05.2017 seeking restoration of the proceedings with the submissions that as various cases between the parties were pending and in all the cases 23.11.2016 was fixed and the same were adjourned. However, qua the case filed under Order XXXIX, Rule 2A CPC, date in the matter was not taken by the counsel and as such for non-appearance of the counsel and the applicants, the application was dismissed. It was prayed that the same be restored.

4. A reply to the application was filed with the contentions that the application was highly belated without indicating any particulars and that the same was not accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay and, therefore, the application was liable to be dismissed.

5. The trial court by its order dated 03.12.2018 accepted the application filed by the respondents on payment of cost and made the same condition precedent for restoration of the proceedings.

6. Feeling aggrieved, the present petition has been filed.

7. Learned counsel for the petitioners emphasized that as the application was apparently barred by limitation and the same was not accompanied by application under Section 5 of the Limitation Act, the order impugned is bad in law and the same deserves to be quashed and set aside.

8. Submissions were made that the observations made the trial court that for non-filing of application seeking condonation of delay, the party cannot be deprived of justice on technical ground are ex-facie incorrect and as such the petition should have been dismissed on that count alone.

9. Further submissions were made that even the indications made in the application did not made out a case of sufficient cause and as such application was liable to be dismissed as barred by limitation and on merits as well.

10. Submissions were made that only on account of hardship or injustice, the proceedings could not have been restored.

11. Reliance was placed on Damodaran Pillai & Ors. v. South Indian Bank Limited : AIR 2005 SCW 4603.

12. Further submissions were made that application was restored on pre-condition of payment of cost, however, the cost has not been paid.

13. Learned counsel for the respondents contested the submissions. It was submitted that the trial court was justified in coming to the conclusion that even if the application seeking condonation of delay was not made, as respondents were able to make out a case for condonation and for restoration of the proceedings, the same could not be dismissed only on account of non-filing of application under Section 5 of the Limitation Act.

14. Reliance was place on Sesh Nath Singh & Anr. v. Baidyabati Sheoraphuli Co-operative Bank Ltd. & Anr.: Civil Appeal No. 9198/2019, decided on 22.03.2021 by Hon'ble Supreme Court.

15. Further submissions were made that the cost as imposed was offered, however, the same was not accepted on account of pendency of the revision petition and, therefore, now the respondents have filed an application with the trial court to deposit the cost.

16. I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

17. The facts are not in dispute wherein the proceedings initiated by respondents under Order XXXIX, Rule 2A CPC were