Kamlesh Sharma, Actg. C. J.: This civil revision petition under Section US C.P.C. is directed against judgment dated 24.11.1995 passed by Sub Judge 1st Class (1), Shimla whereby application of respondent No. 1 and Ms. Simarjit Kaur was allowed and their suit was restored, which was dismissed in default on 14.12.1981.

2. Brief facts are that an application for restoration under Section 151 C.P.C. was filed on 17.3.1982, which was opposed by the petitioner-defendant, inter alia, on the ground that it was hopelessly barred by limitation and liable to be dismissed. In view of this, the respondent - plaintiff filed application under Section 5 of the Limitation Act for condonation of delay for making the application for restoration, which was dismissed by the then Sub Judge 1st class (2), Shimla on 29.11.1983 holding that the respondent-plaintiff failed to prove any sufficient cause for having filed the application for restoration of the suit after expiry of period of limitation. The judgment of Sub Judge 1st Class (2), Shimla was set aside by Additional District Judge (2), Shimla by his judgment dated 1.8.1986 in the appeal filed by the respondent-plaintiff allowing the application under Section 5 of the Limitation Act holding that on coming to know on 15.3.1982 that his suit stood dismissed on 14.12.1981 the respondent - plaintiff inspected the record on next date i.e. 16.3.1982 and thereafter filed application for restoration on 17.3.1982. Additional District Judge (2), Shimla to decide the application for restoration of the suit on merits.

3. Thereafter, on receipt of the case, Sub Judge 1st Class, Shimla proceeded to frame following issues on 12.8.1991:-

1. Whether there is sufficient cause to restore the suit as prayed for ? OPA.

2. Whether the application is not maintainable as alleged ? OPR.

3. Whether the application is liable to be dismissed as alleged in preliminary objection No.3 ? OPR.

4. Whether the application is within time ? OPA

5. Relief. Answering issues No. 1 and 4 in affirmative and issues No, 2 and 3 in negative Sub Judge 1st Class, Shimla has held that he was satisfied that it was original plaintiff-applicant Kishan Singh, who was present in the Court on 2.12.1981 when next date was fixed and there is every possibility that he might have heard the date as 14.3.1982 instead of 14.12.1981, as such, it was a case of "normal human error". For allowing the application it also weighed with Sub Judge 1st Class, Shimla that original suit was filed as far back as in the year 1976 and even the original plaintiff Kishan Singh has also since died and his legal representatives are pursuing this litigation for restoration of the suit for the last more than 14 years, as such, the ends of justice would be defeated if the suit is not restored and decided on merits,

4. So far issue No.2 is concerned, the contention of the petitioner-defendant that application under Section 151 C.P.C. was not maintainable and it was required to be filed under Order 9 Rule 9 C.P.C. was repelled on the ground that the application for restoration of the suit could not be dismissed merely for mentioining wrong provision of law. The point under Issue No.3 that the application having been presented by one Shri J.C. Rana, Advocate, a junior of Shri Bakshi Sita Ram, learned counsel appearing for the respondent - plaintiff was not maintainable, was also decided against the petitioner-defendant in view of the findings of Additional District Judge in this regard, which had become final between the parties.

5. This Court has heard learned counsel for the parties and gone through the record. Mr. R.L Sood, learned counsel for the petitioner-defendant has challenged the findings of Sub Judge 1st Class, Shimla mainly on three grounds. His first submission is that in view of conscious election of the respondent-plaintiff to move an application for restoration of his suit under Section 151 C.P.C. instead of Order 9 Rule 9 C.P.C, Sub Judge 1st Class, Shiml