ORDER

Heard on admission.

Admit.

With the consent of parties, final arguments heard.

This Civil Revision has been filed under Section 115 of the Code of Civil Procedure 1908 being aggrieved with order dated 10/01/2014 passed by District Judge, Chhatarpur (M.P.) in Misc. Civil Appeal No. 17/2012, whereby Misc. Appeal filed under Section 43 Rule 1 of CPC was dismissed by affirming the order dated 11/10/2012 passed by Second Civil Judge Class -I, Chhatarpur (M.P.) in Misc. Case No. 21-A/2010.

2. Brief facts of the case are that the petitioners have filed a civil suit before the trial Court for declaration of title in suit property and to declare order dated 27/10/1995 passed by SDO, Rajnagar null and void and for permanent injunction against the respondents from interference in the suit property.

3. In absence of appellants, the suit was dismissed for want of prosecution on 20/12/2001. After that the appellants have filed an application under Order 9 Rule 9 read with Section 151 of CPC alongwith application under Section 5 of Limitation Act for condonation of delay in filing of the restoration application, which was dismissed vide order dated 11/10/2012 passed in MJC No. 21/2010 by Second Civil Judge Class I, Chhatarpur (M.P.). Being aggrieved with that order the appellants have preferred an appeal under Order 43 Rule 1 of CPC, which was registered as Misc. Civil Appeal No. 17/2012, which was also dismissed vide impugned order dated 10/01/2014. Being aggrieved with the impugned order, the petitioners have preferred this civil revision.

4. Learned counsel for petitioners submitted that the findings of trial Court as well as First Appellate Court regarding sufficiency of cause for condonation of delay in filing of the application for restoration of the case and sufficient cause for non-appearance of petitioner No.1 and her counsel before the Court, when suit was called on for hearing, is erroneous. Learned trial Court as well as First Appellate Court has erred in law in presuming that appellant Nos. 2 and 3 did not seem to be minor, that finding of the trial Court as well as of First Appellate Court is against law. Learned counsel for petitioners also submitted that the suit property is ancestral property of father of appellant Nos. 2 and 3 and submitted that due to ailments of appellant No.1, she was not in a position to appear before the trial Court nor in a position to contact with her lawyer. Hence, prayed for an opportunity to contest the case on merits and prays for direction to the trial Court for restoration of the case on its original number and decide the same on merits.

5. I have considered the arguments of learned counsel for parties and perused the record of trial Court, order of the trial Court as well as First Appellate Court.

6. From the perusal of record, it reveals that the civil suit was dismissed on 20/12/2001 and application for restoration was filed on 20/08/2010 i.e. about after delay of about 8 years and 8 months and reason for delay in filing of the restoration application is mentioned that appellant No.1 fell seriously ill from 18/12/2001 and remained unwell prior to 19/08/2010 and appellant Nos. 2 and 3 were minor and when appellant No.1 recovered and appellant Nos. 2 and 3 attain majority, then appellant No.1 sent appellant Nos. 2 and 3 to her counsel, then on 19/08/2010, for the first time she came to know that the suit has been dismissed on 20/12/2001, thereafter, she contacted her lawyer, that is the reason due to which she was unable to appear before the trial Court on the date of hearing and for the reason alone, she was unable to file the restoration application within time.

7. Reply was filed on behalf of respondent No.1 before the trial Court denying all the averments mentioned in the restoration application as well as reasons mentioned in the application for condonation of delay and prayed for dismissal of the application for condonation of the delay as well as