Failure to file an application for restoration within the limitation period and failure to seek condonation of delay can lead to the dismissal of the application for restoration.

H.S.Bedi, J.

1. This petition is directed against the order of Additional Senior Sub-Judge, Moga, dated 1.9.1993, whereby he declined to restore the suit filed by the plaintiff-petitioner which was dismissed in default vide orders, dated 1. 10. 1988, on the ground that the application filed under Order 9, Rule 8 of the Code of Civil Procedure was beyond limitation and further that the petitioner and his counsel had been negligent in the prosecution of their case.

2. The facts of the case are that the plaintiff-petitioner filed a suit for recovery of Rs. 23,120/- against the respondent. A reply was filed by the respondent and the case was fixed for evidence of the petitioner on 2.8.1987, 16.12.1987, 7.3.1988, 9.6.1988., 26.8.1988 and finally on 1.10.1988. On all these dates, the plaintiff did not produce his evidence and on the last date i.e. 1.10.1988, neither the plaintiff nor his counsel appeared with the result that the impugned order was made. In the application for restoration filed, under Order 9, Rule 8 of the Code of Civil Procedure, the positive -stand taken by the petitioner was that on 1. 10. 1988, i.e. on the date of the impugned order he was abroad, and was, therefore, not in a position to prosecute the case. The trial Court after recording evidence came to the conclusion that the fact that the petitioner had gone abroad had not been proved but the Court nevertheless found that as the petitioner had been given many opportunities to produce his evidence and had not done so he was not interested in pursuing the case and further that the application for setting aside the ex-parte proceedings having been filed on 9.2.1989 was barred by limitation which was 30 days from the passing of the impugned order. Aggrieved thereby the present petition has been filed.

3. Mr. K.S. Brar, learned counsel for the petitioner, has urged that while some lapse could be attributed to the petitioner it was nevertheless appropriate that his case ought to be tried on its own merits and that the petitioner could be burdened with costs so as to indemnify the respondent. In support of his argument, Mr. Brar has relied upon Bishnu Bhagwan and Ors. v. Bani Madho Saran, 1990 P.L.J. 404.

4. As against this, Mr. H.S. Bhullar, learned counsel for the respondent, has urged that the fact that the application had been filed beyond 30 days was an admitted fact and Section 122 of the Limitation Act specified that any application filed beyond that period would be barred by limitation. He has urged that this objection was taken by the respondent in reply to the application and despite this no application for condonation of delay had been filed by the applicant in the trial Court or in the present proceedings. Mr. Bhullar has also urged that the observations made in the cited case Bishnu Bhagwan and Others (Supra) pertain to a situation where the application for restoration had been filed within the time period of 30 days and in that situation it was thought appropriate that the case ought to have been decided on its merits.

5. After hearing the learned counsel for the parties, I find no merit in the petition. It would be apparent from the narration of the facts given above that the petitioner had been given six opportunities to produce his evidence and on 1.10.1988, which was the last date given for the purpose subject to payment of Rs. 25/- as costs, neither the petitioner nor his counsel appeared in the Court. The trial Court was therefore justified in making the impugned order. There is also substance in the argument of Mr. Bhullar that the application for restoration under Order 9, Rule 8 of the Code of Civil Procedure having been filed beyond 30 days would be barred by limitation and the only way in which it could be entertained was that an application for condonation of delay ought to have been preferred and as this was not done, the trial Court had no option but to dismiss the application for restoration. 6. For the reasons recorded above, I