1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 832 of 2005 (M/S) Joga Ram S/o Shri Dikar Ram, R/o Village Chami, P.O. Gurubaj, District-Almora. …....Petitioner. Versus State of Uttaranchal, through Collector, Almora and two others. ……Respondents. Sri Manoj Mohan, learned counsel present for the petitioner Sri Bindhesh Kumar Gupta, Additional Advocate General present for the State. Date: - November 26, 2008. Hon’ble B.S. Verma, J. By means of this writ petition the petitioner has sought a writ, order or direction in the nature of certiorari for quashing the impugned order dated 29.6.2005 (contained as Annexure No. 3 to this writ petition) passed by the District Judge, Almora, respondent no. 3 whereby the restoration application as well as delay condonation application has been rejected being time barred. Brief facts giving rise to the writ petition are that the petitioner has preferred the appeal against the order dated 28.4.2000 passed by the learned Prescribed Authority whereby the learned Prescribed Authority confirmed the notice which was issued under Section 4(1) of the Public Premises Act and directed to issue notice under Section 5(1) of the Act for ejectment. Appeal was filed on 30.5.2000 by the petitioner. It is mentioned in the impugned judgment passed by the respondent no. 3-District Judge that appellants have moved several adjournments and ultimately on 6th February,2004 absented himself. Consequently, the appeal was dismissed in default. For setting aside the dismissal order dated 6.2.2004, 2 the appellants moved an application for restoration which was filed on 8.3.2000 and registered as Misc. Case No. 2 of 2004. When the application was taken up for hearing on 11.5.2004, no-one turned up on behalf of the appellant-petitioner. The restoration application was dismissed on 11.5.2004. For setting aside the order dated 11.5.2004, the petitioner- appellant moved an application on 19.7.2004 which was delayed by one month eight days. The application was moved supported by affidavits as well as medical certificates. It has been held by the District Judge that although the petitioner had filed the medical certificate but in intervening period when he was fit no explanation was given to this fact that he could not contact his counsel or he was unable to attend the Court, and the learned District Judge being not satisfied with the explanation, dismissed the application filled by the petitioner-appellant. The counter affidavit has been filed by the State and in the counter Affidavit the averment made by the petitioner has been rebutted. Having heard the learned counsel for the petitioner as well as the learned counsel for the State, the delay in filing the application has been explained by filing medical certificate and by making averment in the affidavit. The delay was only of one month eight days. It is well settle that the hyper technical view should not be taken in restoration. The restoration application was to be heard on merit. The application for recalling the order whereby the restoration application was dismissed, in the interest of justice, the order dated 29.6.2005 is liable to be set aside. The writ petition is liable to be allowed. 3 The writ petition is allowed. The order passed by the District Judge-respondent no. 3 is set aside and application 10-C is allowed. The learned District Judge-respondent no. 3 is directed to decide the restoration application of the petitioner after hearing both the parties. The petitioner shall appear before the District Judge- respondent no. 3 on 22.12.2008. The parties shall co-operate for expeditious disposal of the case. Interim order dated 3.8.2005 stands vacated. All the pending applications stand disposed of accordingly. Dated: 26.11.2008 (B.S. Verma, J.) RMY