Hon’ble Umeshwar Pandey, J.—Heard the learned counsel for the parties.

2. Respondents counsel is not present in spite of the list having been revised.

Counter affidavit was filed on some earlier date on behalf of respondent No. 2.

3. This petition challenges the order dated 20.10.2005 restoring the suit after granting the delay condonation application under Section 5 of the Limitation Act.

4. The learned counsel contends that the suit was initially filed by respondent No.3 for specific performance of contract of a registered agreement of sale and the petitioner was made a proforma defendant. Since the agreement of sale was also executed in favour of the petitioner he applied to the trial court to be transposed as plaintiff and the same was allowed. The petitioner and respondents No. 3 and 4 are the real brothers. The petitioner was staying away from the village and was working in Calcutta. The Pairvi of the case was being done by his brother, respondent No. 3. It is alleged that respondent No. 3 connived with respondent No. 2, the defendant, and got the suit dismissed in default and no knowledge of that was had by the petitioner till a day before moving of the restoration application. The suit was dismissed on 10.2.2000 and restoration application was given by the petitioner on 25.10.2000. The petitioner’s plea as taken for the restoration of the suit was accepted by the trial court, but the revisional court giving one or the other reasons has interfered with that order of the trial court and rejected the restoration application.

5. In the facts of the present case what is most striking is that the petitioner/plaintiff was residing away from the village and was working at a far distant place like Calcutta. The contention of the petitioner that the other plaintiff Lallan had got the suit dismissed in connivance with the defendant Smt. Hira Wati further finds support from the fact that no restoration application was moved by respondent No. 3 even though he was the original plaintiff in the suit doing Pairvi of the same. The agreement of sale is said to have been executed in favour of the three brothers, the petitioner and respondents No. 3 and 4. If the decree of specific performance of contract was to be obtained it would be obtained in favour of all the three. Why and under what circumstances respondent No. 3 who was made in-charge of the Pairvi of the case did not take any step to go ahead and get the suit restored, is also quite striking and appears to be unnatural that he did not inform his brother the petitioner working at Calcutta about the dismissal of the suit. Therefore, the allegations of his connivance with defendant/respondent No. 2 is wholly probabilized in the circumstances prevailing in the case. The revisional court appears to have wrongly appreciated the available facts and has twisted the case to take an adverse decision against the petitioner.

6. Otherwise also the discretion exercised by the trial court for permitting condonation of delay under Section 5 of the Indian Limitation Act is not to be usually disturbed by the court exercising revisional jurisdiction unless it is found that exercise of discretion was wholly on untenable grounds or arbitrary or perverse. In Balakrishnan v. M. Krishnamurthy, JT 1998 (6) SC 242, the Apex Court in such matters has propounded as below :

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior