An application for restoration of a suit must be filed within the period of limitation and accompanied by an application to condone the delay if filed beyond the period of limitation.

1. This Civil Revision Petition is filed against the fair and decretal order dated 25.03.2010 made in I.A.No.442 of 2009 in O.S.No.27 of 2006, on the file of the Principal Sub Judge, Pondicherry.

2. The petitioners are defendants and respondent is the plaintiff in O.S.No.27 of 2006, on the file of the Principal Sub Judge, Pondichery. Respondent filed the suit for a direction to the petitioners to execute the sale deed in favour of the respondent in respect of the suit “B” Schedule property by considering the advance amount of Rs.5,71,000/- as sale consideration, within the time fixed by this Court and to confirm the respondent's possession of the “B” Schedule property in pursuance of the sale deed executed by the petitioners or Court in respect of 'B' Schedule Property. The petitioners filed an application for amendment of the plaint and the same was ordered. The respondent did not carry out the amendment on time. The suit was adjourned for number of occasions for carrying out the amendment. On 25.03.2009, the suit was dismissed for default, for not carrying out the amendment. The respondent filed I.A.No.442 of 2009 for restoration of the suit.

3. According to the respondent, on 25.03.2009, the counsel appearing for the respondent was suffering from severe blood pressure and respondent's Power Agent represented in the morning and when the suit was passed over, he also felt ill and he could not be present in the afternoon to represent the suit. In view of the absence of the respondent or her Power Agent and her counsel, the suit was dismissed. The absence of the respondent or Power Agent is neither wilful nor wanton.

4. The petitioners filed counter affidavit and opposed the said application and submitted that the suit was dismissed for default on 25.03.2009, while I.A.No.442 of 2009 was filed for restoration only on 9th July, 2009. Respondent has not even filed any application for condonation of delay. The respondent is dragging on the proceeding at every stage, after amendment being ordered. The respondent in spite of number of opportunities being given, has not carried out the amendment. Hence the suit was dismissed for default. The reason given by the respondent is not valid.

5. The learned Judge, considering the nature of the relief sought for in the suit and considering the pendency of two more suits between the parties, in order to give opportunity to the petitioners, allowed the application.

6. Against the said order dated 25.03.2010 made in I.A.No.442 of 2009 in O.S.No.27 of 2006, the present civil revision petition is filed by the petitioners.

7. The learned counsel appearing for the petitioner submitted that the respondent did not file any application for condonation of delay and learned Judge had failed to consider the objection raised by the petitioner and also the fact that the respondent's intention is only to drag on the proceedings, relied on the judgment reported in (2009) 6 SCC 194 (Sneh Gupta Vs. Devi Sarup and Others):

“70. Even otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 06.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963, to entertain the application for setting aside the decree (See Dipak Chandra Ruhidas V. Chandan Kumar Sarkar and Sayeda Akhtar V. Abdul Ahad).”

8. The learned counsel appearing for the respondent submitted that the respondent filed an application for restoration of the suit dated 24.04.2009 on 27.04.2009. But Court neither numbered t