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 a