[2025:RJ-JP:10005]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Restoration Application No. 1276/2024 in S.B. Civil Second Appeal No. 318/2014

1. State Of Rajasthan, Through Collector, Bharatpur

2. General Manager, District Industries Center, Bharatpur.

3. Deputy District Collector, Bharatpur.

----Petitioners Versus M/s Kisan Oil Mill Mohanpura, Kumher Through Proprietor Bhola Singh S/o Ram Prasad, R/o Belarakalan, Tehsil Kumher District Bharatpur.

----Respondent For Petitioner(s) : Mr. Devansh Sharma, Dy. GC For Respondent(s) :

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

Order

05/03/2025

1. Instant restoration application is preferred by applicant- appellants to restore S.B. Civil Second Appeal No. 318/2014 dismissed for non-prosecution on 05.09.2023. Office has pointed out a delay of 390 days in filing instant restoration application.

2. An application under Section 5 of Limitation Act is filed for condonation of delay in filing the restoration application on the ground that the Officers of the State Department came to know about dismissal of civil second appeal at belated stage and after change of counsel, the restoration application was filed.

3. Learned counsel appearing for applicant submits that the reason is bona fide and they are entitled for condonation of delay. He submits that in case restoration application is not restored to its original number then they have to suffer adversely and the interest of State will suffer.

4. Heard learned counsel for applicant and perused the material placed on record.

5. Aggrieved from dismissal of civil regular appeal No. 170/2003 by learned Additional District Judge No.2, Bharatpur on 07.10.2013, S.B. Civil Second Appeal No. 318/2014 was filed by the appellants. When this matter was taken-up on 29.08.2023, no one has appeared on behalf of appellants, thereafter on 05.09.2023, no one has appeared and the matter was dismissed for non-prosecution.

6. In brief the facts of the case are that respondent-plaintiff has filed a civil suit No. 190/1999 before learned Civil Judge (Junior Division), Bharatpur for declaration and permanent injunction and same was decreed on 03.11.2003. The first appeal preferred by present applicants was also dismissed, thus there is a concurrent finding of a fact.

7. The application under Section 5 of Limitation Act indicate that after knowledge at belated stage and change of counsel, the restoration application is filed. Herein, the applicants have failed to show the reasons of delay, particularly when they have come to know about dismissal of civil second appeal and also steps taken by them. No reason was mentioned about non-appearance on 29.08.2023. A perusal of order passed in S.B. Civil Second Appeal No. 318/2014 indicate that either the counsel remained absent or adjournment was sought by appellants-defendants.

8. Section 5 of the Limitation Act prescribes that any appeal or revision or an application may be admitted after the prescribed period, if the appellant or the petitioner satisfies the Court on sufficient cause for not preferring an appeal or revision or making an application within prescribed period.

9. In case of Collector, Land Acquisition, Anantnag Vs. Katiji AIR 1987 SC 1353, Hon’ble Supreme Court laid down the following principles to allow application under Section 5 of the Limitation Act:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay. every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of