IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.361 of 2006 BINDESHWARI PRASAD SAH Versus RAJO PODDAR ----------- 3 25/8/2008 Heard counsel for the petitioner and counsel for the opposite party. In the opinion of this Court the impugned order restoring the suit which was earlier dismissed for default, does not suffer from any jurisdictional error, muchless, from any material irregularities. Counsel for the petitioner would seriously contend that as the suit was dismissed in the year 1998 and the application for its restoration was filed in the year, 2000, the court below was infact functus-officio and had no power to restore the suit. For this purpose he has pressed the provisions of limitation Act under Schedule-III Item No. 122 to contend that there is only thirty days time for filing application for restoration of a suit, appeal or application etc. and therefore when in the period of thirty days such application was not filed, the suit could not have been restored. He also relies in this regard on the judgment of this Court in the case of ‘Tilkeshewar Singh @ Tilkeshwar Prasad Singh Vs. State of Bihar & Ors’ reported in 2004(3) P.L.J.R 114. In the opinion of this Court, such submission of the petitioner is only to be noticed for its being rejected. What has really been prescribed under section 5 of the Limitation Act 2 is that the Court in case it is satisfied that there was sufficient cause for not preferring an appeal or making the application within the period prescribed, will have power to extend the period of limitation. The application which was filed for restoration of the suit is an application within the ambit of section 5 of the Act and therefore to say that the Court had no power to extend time because that could have resulted into restoration of the suit is rather extending the matter too far. In that view of the matter, when even in the aforementioned case of Tilkeshwar Singh (supra) Law was laid down by the Division Bench only to the extent that when the period of limitation is prescribed for filing a suit, that cannot be extended by use of provisions of section 5 of the Limitation Act, in the opinion of this Court that ratio would not be made applicable for filing an application for restoration of a suit. Counsel next contends that the order of the court below even otherwise is unsustainable on the grounds mentioned in application filed for condonation of delay. Mr. R.C. Sinha, learned counsel appearing on behalf of the opposite party has however referred to the facts stated in the limitation petition from which it will be apparent that the application filed for restoration was accompanied with a limitation petition. In that view of the matter, if the court below has found that there was sufficient cause 3 for filing a belated restoration application and has gone to hold that the restoration of the suit was required, the ends of justice would be in fact better served if the suit is decided on merits. Consequently, this Court does not find any merit in this civil revision application and the same is hereby dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar