1 S.B. Civil Misc. Restoration Application No. 116/2008 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B. Civil Misc. Restoration Application No. 116/2008 In S. B. Civil Second Appeal No. 78/1998 Mahesh Chand Vs. Babulal & Others. Date of Order: 03.12.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. S.R. Surana, for the appellant. Mr. Ashok Yadav, for the respondents. Learned counsel for the appellant has moved an application for restoration of second appeal, which has been dismissed due to non- compliance of per-emptory order dated 22.08.2006 passed by this Court. 2. It appears that Respondent No. 1, Babulal expired on 06.09.2004 and appellant moved an application for substitution of his legal representatives on 11.07.2006. Second appeal was listed before this Court on 22.08.2006. Since the application was filed after expiry of period of limitation, therefore, learned counsel for the appellant prayed for 2 S.B. Civil Misc. Restoration Application No. 116/2008 grant of time to move an application under Order 22 Rule 9 CPC as well as under Section 5 of the Limitation Act. This Court granted one week's time to learned counsel for the appellant to do the needful in the matter with a condition that if order is not complied with, then appeal shall stand dismissed automatically without reference to Court. Since required applications were not filed, therefore, appeal stood dismissed. Hence, this application has been filed for restoration of second appeal. 3. There is delay of 490 days in filing the application for restoration of the appeal, therefore, appellant has also filed an application under Section 5 of the Limitation Act for condonation of delay in filing the restoration application wherein it is contended that brother of appellant Mr. Suresh Chand Pandey, Advocate was dealing with the case on behalf of the appellant and he fell ill. He was medically examined on various dates including his Angiography. Medical reports and other documents have been placed on record alongwith another application under Section 151 C.P.C. for taking said documents on record. 3 S.B. Civil Misc. Restoration Application No. 116/2008 4. The appellant has also filed an application under Order 22 Rule 3 read with Order 22 Rule 9 CPC in this restoration application. This Court issued notice of the application for restoration of second appeal as well as other applications to respondents on 23.04.2008. 5. Respondents have not filed any reply to restoration application or to the application under Section 5 of the Limitation Act for condonation of delay in filing the application for restoration of second appeal, but respondents have filed reply to application under Order 22 Rule 3 read with Order 22 Rule 9 CPC wherein it has been contended that since legal representatives of deceased-respondent Babulal were already on record, therefore, appeal did not abate. 6. At present an application for restoration of second appeal has come before me, therefore, I heard the restoration application as well as application under Section 5 of the Limitation Act. 7. Respondents have not filed any reply to both the applications. As per reply of 4 S.B. Civil Misc. Restoration Application No. 116/2008 respondents to application under Order 22 Rule 3 and 9 CPC, the appeal did not abate. If this reply of respondents is taken into consideration, then there was no need to move an application under Order 22 Rule 9 CPC and there was no need to grant time to move said application. 8. Since no reply to application for restoration of second appeal and application for condonation of delay for filing the application for restoration of second appeal has been filed, therefore, I am of the view that explanation given by the appellant for not filing the application for restoration of second appeal in time is to be believed. 9. After considering all the facts and circumstances of the case and the reasons assigned in the applications duly supported by affidavits and to which no reply has been filed by the respondents, I think it fit and proper to condone the delay in filing the restoration application and to restore second appeal. 10. Consequently, both the applications are allowed. Delay in filing application for restoration of second appeal is condoned and 5 S.B. Civil Misc. Restoration Application No. 116/2008 second appeal is restored to its number. 11. Third application dated 16.10.2008 for taking documents on record is also allowed. 12. Application under Order 22 Rule 3 read with order 22 Rule 9 read with Section 151 CPC be placed on record in the main file of second appeal, which will be considered by Regular Bench. (Narendra Kumar Jain),J. Manoj, Item No.S.5.