The main legal point established in the judgment is that the grounds for restoration of a case must be sufficient, and the defendant's lack of vigilance and failure to stay in touch with his advocate can impact the court's decision on restoration applications.

1. Heard counsel for the appellant and perused the record.

2. Original suit no. 227 of 1988, Moti Chand and others Vs. Nand Gopal, was filed by the plaintiff respondent for specific performance of agreement dated 27.7.1987 for executing the sale deed of plot no. 103 A, area 906 kari and 103 B, area1.281 kari, total area 2.187 kari, for sale consideration of Rs. 30,000/-.

3. The suit was contested by the defendant appellant by denying the plaint allegations. Execution of agreement to sell dated 27.7.1987 as claimed by the plaintiff respondent was also denied, inter alia that his signatures of the sale deed are not his. The suit was also contested on the ground that value of the land is in lacs whereas it has been sold undervalued at Rs. 30000/- only and that defendant appellant had no other source of livelihood except the land in question on which his family is fully dependent upon.

4. The suit was decreed by the trial court vide judgment and order dated 10.9.1992. Aggrieved the defendant appellant filed appeal no. 499 of 1993 in the court of District Judge, Azamgarh. The appeal was listed on 21.4.1997 before Ist Additional District Judge, Mau. The counsel for the appellant submits that no notice was issued to the appellant in the civil appeal rather his counsel had accepted the notice who informed the court that his client is not coming, on which the appeal aforesaid was dismissed in default.

5. Counsel for appellant further submits that the appellant had gone to Calcutta to earn his livelihood and prior to it he had instructed Sri Abdul Hafiz, the clerk of the counsel whom he had engaged to defend his case, to inform him whenever he is required to be present in the proceedings but as the clerk died during pendency of the suit, hence he could not know about hearing of the appeal. It is under these circumstances that the case was dismissed in default and he came to know about its decision when execution case to appeal no. 30 of 1997 was filed and notices were received by him.

6. It is urged that on receipt of the notices in the execution case, the defendant appellant filed a restoration application alongwith application under section 5 of the Indian Limitation Act for condoning the delay in filing the restoration application. The grounds in both the applications are said to be the same. It is submitted by the counsel for appellant that application under section 5 of the Limitation Act, was allowed on payment of cost of Rs. 2000/- whereas the restoration application filed on the same grounds, has been rejected by Additional District Judge, court no. 1, Mau vide order dated 22.5.2010 which has given cause to the appellant for filing present First Appeal From Order.

7. It appears from the arguments and record in this appeal that application under section 5 of the Limitation Act as well as the restoration application were filed on the same grounds. The court below allowed the application under section 5 on 14.5.2007 after considering the question of delay in filing the restoration application but has rejected the restoration application which, according to the counsel for appellant, is a grave illegality. It also appears that one of the grounds taken by the defendant appellant in the court below was that as he was not residing at Mau, he had no knowledge of dismissal of the appeal since he had gone to Calcutta to earn his livelihood and that he had instructed the clerk of the advocate engaged by him to inform him whenever his presence is required but due to his sad demise, he could not receive any information resulting into order dated 21.4.1997 dismissing the appeal in default.

8. It is an admitted fact on record that the defendant appellant had engaged a counsel to represent him in the court below. It is also admitted that he had filed two applications on same grounds i.e. one under section 5 of the Limitation Act and the other for restoration of the appeal by setting aside the order dated 21.4.1997. The application under