IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 741 of 2004 (M/S) 1. Jagdish Prasad 2. Ganga Ram Both sons of Nathu Ram Resident of Village Chakrapur Alahpur, Tehsil Bazpur, District Nainital presently residing at Mohalla Katra Maliyan, Kashipur, District Nainital. ……Petitioner. Versus 1. State of U.P. through the District Magistrate, Nainital. 2. Ist Additional District Judge, Nainital. 3. Prescribed Authority (Additional Sub Divisional Magistrate) Kashipur, Nainital. …..Respondents. Mr. M.C. Kandpal, Senior Advocate with Ms. Preeta Bhatt, learned counsel for the petitioners. Mr. R.C. Arya, learned Brief Holder for the State-respondents. Date:- 11-12-2009 Hon’ble B.S. Verma J. Heard Mr. M.C. Kandpal, Senior Advocate with Ms. Preeta Bhatt, learned counsel for the petitioners and Mr. R.C. Arya, learned Brief Holder for the State-respondents. By means of this writ petition, the petitioners has sought a writ in the nature of certiorari quashing the order dated 19-10-1985 and order dated 21-5-1988 passed by the respondent Nos. 3 and 2 contained in annexure Nos. 4 and 7 to the writ petition. Brief facts giving rise to the present writ petition are that the petitioners were served with a notice under 2 Section 4 of the U.P. Public Premises Act for the disputed premises. The notice was issued through Prescribed Authority/Additional Sub Divisional Magistrate, Kashipur. The proceeding has been initiated ex-parte against the petitioners and order of eviction was passed by the respondent No. 3 on 6-10-1981. When the ex parte order was came into the notice of petitioners, they filed the restoration application for recalling the earlier order dated 19-10-1985. The restoration application was dismissed by the respondent No.3 i.e. Prescribed Authority. Further aggrieved by both the orders, the petitioners preferred an appeal before the District Judge, Nainital along with an application under Section 5 of the Limitation Act, which was subsequently transferred to 1st Additional District Judge, Nainital. The respondent No.2 i.e. 1st Additional District Judge, Nainital vide order dated 21-5- 1988 rejected the petitioners appeal holding that the appeal appears to have been filed against two different orders dated 6-10-1981 and 19-10-1985 and also on the ground that the appeal was filed after 15 days from the date of order dater 6-10-1981. I have heard learned counsel for the parties and perused the orders. The appellate court has committed manifest error of law in calculating the limitation from 6- 10-1981. The petitioners filed application for recalling order dated 6-10-1981, which was dismissed on 19-10-1985. Both the orders have been assailed, since the restoration application was pending how the petitioner before the decision of the restoration/recall application could have prefer an appeal. The order of the 1st Additional District Judge, Nainital is liable to be set-aside on this ground alone. 3 The writ petition is allowed. However. The order is set aside, the delay in filing the appeal is condoned. The learned District Judge, Nainital is directed to decide the appeal on merit treated the appeal within time, expeditiously as far as possible. All pending applications stands disposed of accordingly. (B.S. Verma, J.) 11-12-2009 MK