U.C. Dhyani, J. (Oral)

There is delay of 1917 days in filing the Restoration Application. Hence, an application for condoning the delay in filing the Restoration Application was moved on behalf of the appellant. Objections were filed on behalf of the respondent on the same. Learned Senior Counsel appearing for the respondent vehemently opposed such delay in filing the restoration application. He argued that if a delay of 1917 days is condoned, then what is the objective of Section 5 of the Limitation Act?

2. The second Appeal was dismissed in default of the appellant on 10.07.2007 and the restoration application has been moved on behalf of the appellant on 09.11.2012.Thus, there is more than five years’ delay in filing the restoration application. The reasons assigned for the delay are reproduced herein thus:

1. That as per contract clause 9 (iii) of the agreement no. THDC/ND/CD-145/AG, dated 24.01.1997, for construction of Tehri Dam and Associated works, THDC, started deduction of Sales Tax on Machinery rental and deducted sales Tax amount to Rs. 5,53,360/- from the Running Account Bill No. 27 and Rs. 2,76,680/- from the Running Account Bill No. 28 totaling to Rs. 8,30,040/-.

2. That aggrieved by this action of the THDC, respondent filed a Civil Suit (Suit No. 24 of 1998) before Civil Judge (J.D.), Tehri for restraining THDC from recovering Sales Tax on the said Machinery Rentals. The court vide its order dated 21.12.2000 decided the matter in respondent’s favour and directed the THDC not to deduct any Sales Tax from R/A Bills.

3. That against the said order dated 21.12.2000, passed by the Civil Judge (J.D.), Tehri, THDC filed an appeal (as Civil Appeal No. 01 of 2001) before the District Judge. The District Judge, Tehri also vide its order dated 13.12.2002 dismissed the appeal of THDC.

4. That the THDC, thereafter, filed above mentioned appeal before this Hon’ble Court which was registered as Second Appeal No. 18 of 2005.

5. That the above mentioned Second Appeal was dismissed on 10.07.2007 and the dismissal of the above captioned second appeal was not the knowledge of the Applicants and it seems that the same was also not in the knowledge of the respondent.

6. That the applicants for the very first time came to know of the dismissal of the above mentioned second appeal on 01.10.2012 when the same was communicated by the respondent through it’s letter dated 21.09.2012, received in the office of applicants on 01.10.2012.

7. That immediately, thereafter, applicants contracted it’s counsel at Nainital and enquired about the case and on enquiry being made it came to light that the above mentioned case has been dismissed for want of prosecution on 10.07.2007.

8. That immediately, thereafter, application for obtaining certified copy of the order dated 10.07.2007 was made on 15.10.2012 and after obtaining the same, present Restoration Application alnong with Delay Condonation Application is being filed without any thereafter delay.

9. That listing of the case on 10.07.2007 and its dismissal was neither in the knowledge of the applicants nor the counsel.

10. That non-appearance of the counsel was not deliberate or intentional and the counsel also tenders his apology for his non-appearance.

3. Learned counsel for the appellants contended that, firstly, the appellants wrongly pursued the revision, and, thereafter, when the Second Appeal was dismissed for non-prosecution, the same was not in the knowledge of the appellants till such time the Restoration Application was moved. The dispute relates to deduction of Trade Tax from the Bills of the Contractor.

4. Learned counsel for the appellant (applicant herein) relied upon a decision of State of Haryana vs. Chandra Mani and others, reported in (1996) 3 Supreme Court Cases 132, para 11 of which is reproduced herein below for reference:

“It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by pr