Civil Revision No. 3688 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 3688 of 2007 Date of decision: 26.10.2009 Darshan Singh Grewal ....Petitioner Versus Ajad Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: -Mr. Dalip Singh Brar, Advocate, for the petitioner. None for the respondent. ***** VINOD K. SHARMA, J (ORAL) The petitioner has invoked the jurisdiction of this Court to challenge the order dated 30.10.2006 passed by the learned Courts below, vide which the application moved by the petitioner for restoration of an application for restoration of the suit dismissed in default, has been ordered to be dismissed. The petitioner moved an application on the pleadings, that he was resident of H. No. 924, Sector 4, Panchkula, and was tenant under the defendant/respondent. The defendant had agreed to sell the house vide agreement dated 31.10.1994 for consideration of Rs.5,94,500/- (Rupees five lac ninety four thousand and five hundred only). The petitioner claimed to have paid a sum of Rs.1,00,000/- (Rupees one lac only) as earnest money and remaining amount was to be paid by 5.1.1995. It was the case of the plaintiff/petitioner, that he was willing to perform his part of the contract, but the defendant/respondent failed to get the sale deed executed. The application moved by the petitioner for restoration of the suit was dismissed in default on 9.8.2002, though the petitioner and his Civil Revision No. 3688 of 2007 -2- counsel were present. The application was contested, wherein preliminary objections were taken with regard to maintainability, estoppel and limitation. It was pleaded in reply, that the petitioner had filed a suit for mandatory injunction in respect of agreement to sell dated 31.10.1994. The petitioner had also filed application under Order 6 Rule 17 of the Code of Civil Procedure. But he failed to pay the ad valorem court fee on the plaint. It was pleaded that the plaintiff/petitioner was not ready and willing to get the sale deed executed on payment of the balance sale consideration. The suit filed by the defendant/respondent for possession was decreed on 5.6.1998 against the plaintiff. The appeal as well as the regular second appeal filed by the petitioner were dismissed, and the possession was handed over to the defendant in pursuance to the execution of the said decree. It was pleaded that compromise was entered into between the parties and the plaintiff/petitioner instead of paying the court fee got his application dismissed as partly satisfied, and the suit was got dismissed as withdrawn on 19.7.1999. It was pleaded that the suit was withdrawn under some mis- representation. The learned trial Court dismissed the application by holding, that plaintiff/petitioner earlier filed an application for restoration of the suit, which was dismissed as withdrawn on 19.7.1999. The application was dismissed in default on 19.8.2002, whereas the subsequent application was moved on 2.2.2003 for restoration of the application, which was dismissed in default i.e. about seven months later. The learned Court, therefore, held that prima facie the application was time barred. The learned Court also held, that the suit was not dismissed in default, but was dismissed as withdrawn, which could not be restored by moving an application for restoration of the case. Thus, the learned trial Court held, that the application itself was not maintainable. Civil Revision No. 3688 of 2007 -3- Appeal also failed. Mr. D.S. Brar, learned counsel, appearing on behalf of the petitioner, contended that the suit could be restored on payment of costs to the defendant/respondent. The learned counsel for the petitioner also contended, that the subsequent suit filed by the petitioner was on a different cause of action and, therefore, the decision on said suit against him cannot be a basis for rejection of his application for restoration of suit. On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. Learned Courts below rightly observed, that the suit filed by the petitioner was not dismissed in default, but was dismissed as withdrawn and, therefore, the simple application for restoration was not competent. The learned Courts below were also right in holding that the application moved by the petitioner was hopelessly barred by time. It was admitted case of the petitioner, that no application for condonation of delay under Section 5 of the Limitation Act was moved. Once the application was barred by limitation, in absence of application under Section 5 of the Limitation Act, the application for restoration itself was not competent. No ground, therefore, is made out to interfere with the impugned order. No merit. Dismissed. (Vinod K. Sharma) Judge October 26, 2009 R.S.