THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition (M/S) No. 244 of 2006 (Under Article 227 of the Constitution of India) Lajpat Rai Madan S/o Sri Jeewan Das Madan, R/o Sadar Bazar, Ranikhet, District … Petitioner. Versus 1. Additional Chief Revenue Commissioner, Circuit Court, Uttaranchal, Nainital. 2. Additional Commissioner Kumaon Division Nainital. 3. Sri Keshar Singh, S/o Mohan Singh, R/o Village Talli Riyani, Tehsil Ranikhet District- Almora. 4. State of Uttaramchal. 5. Gram Sabha Talli Riyani, Tehsil Ranikhet District- Almora. … Respondents. Sri B.D. Pande, learned counsel for the petitioner. Sri Nand Prasad learned counsel for the respondent no.1 & 2. Dated March 24, 2006. Hon’ble B.S. Verma, J. The petitioner has filed the writ petition to set aside the order dated 7.10.2005 passed by the Additional Chief Revenue Commissioner Nainital in Revision No. 228 of 2004 and order dated 25.3.2004 passed by Additional Commissioner Kumaun Nainital in Z.A. Appeal No. 62/85 (95-96)/17(97-97), Keshar Singh Vs. Lajpat Rai and others. By the impugned order dated 25.3.2004, the Additional Commissioner Kumaun Nainital has restored the appeal and by the order dated 7.10.2005, the Additional Chief Revenue Commissioner has dismissed the revision of the petitioner preferred against the order dated 25.3.2004 passed by the respondent no.2. Brief facts of the case are that the petitioner’s suit under Section 209 of the Zamindari Abolition Act was decreed by 2 the judgment and order dated 30-9-1995 by the Sub Divisional Officer Ranikhet. Aggrieved by the said order, respondent No.3 filed an appeal before the Commissioner Kumaon Division Nainital on 23.2.1996. The appeal was dismissed on 18.4.1996 in default and the order of dismissal was set aside on 11.7.1996. The petitioner moved an application for recalling the order dated 11.7.1996 on the ground that no notice was served upon the petitioner before setting aside the ex-parte order. The application of the petitioner has been rejected vide order dated 30.5.1997 passed by the Additional Commissioner (Judicial) Kumaun Region Nainital. Aggrieved by the said order, the petitioner filed a revision before the Board of Revenue Allahabad. After haring both the parties, the Board of Revenue set aside the order dated 11.7.1996 and 30.5.1997 and ordered the Appellate Court to decide the restoration application dated 6.7.1996 according to law after both the parties. After hearing the petitioner and the respondent no. 3 on the application under Section 5 of Limitation Act and the restoration application, the Z.A. Appeal No.62/25(95-96)/17(96-97) Keshar Singh Vs. Lajpat Rai Madan was restored vide order dated 25.3.2004 by the respondent no.2. Aggrieved by the said order dated 25.3.2004, the petitioner filed a Revision before the Additional Chief Revenue Commissioner, Uttaranchal, Nainital. The revision no. 228 of 2004 preferred by the petitioner was dismissed vide order dated 7-10-2005. Aggrieved by both the impugned orders dated 25.3.2004 and 7-10-2005, the petitioner has filed the present writ petition. I have hard the learned counsel for the petitioner and learned Standing Counsel Sri Nand Prasad for respondent nos. 1, 2 and 4. Learned counsel for the petitioner has contended that the learned lower court failed to consider the provisions of Order 41, Rule 19 C.P.C. and has committed gross illegality in not considering the important aspect of law land furthermore, both the 3 application under Section 5 Limitation Act and restoration application have been decided by the same order. The delay has not sufficiently been explained by the respondent no.3 as required by law. The learned Additional Commissioner has restored the appeal on the ground that for the negligence of the counsel, the litigant should not suffer. The learned Commissioner has observed in his order that the petitioner has also moved application for recalling the order of restoration after eight months, while the order of restoration was in the knowledge of the petitioner since September 1996. The respondent has stated in his application, which was supported by affidavit that because of his illness, he was unable to attend the Court on the date fixed. As soon as the order of dismissal came to his knowledge, he moved the restoration application. The learned Additional Commissioner, in the interest of justice, observed that it would be proper to decide the appeal on merit. Accordingly, the delay in filing the restoration application was condoned and the application was allowed. In the revision before the learned Additional Chief Revenue Commissioner, he gave a finding after perusing the case law cited by both the parties, that the litigant should not suffer for the mistake of counsel and the application under Section 5 of the Limitation Act and restoration application can be decided by one order. Accordingly, the revision has been rejected vide order dated 7.10.2005. I do not find any manifest error of law having been committed by the respondent nos. 1 and 2 in allowing the restoration application thereby restoring the appeal. The writ petition is devoid of merit. The writ petition is dismissed in-limine. (B.S.Verma, J.) RCP