1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.652/2008 Brij Mohan Versus Addl. District Judge No.2 & Another Date of Order :: 29th July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Raj Kumar Sharma for the petitioner BY THE COURT: Heard learned counsel for the petitioner. 2. The plaintiff's suit was dismissed in default on 24th January, 2003. He filed an application under Order 9 Rule 9 CPC on 2nd January, 2004 for restoration of suit. There was delay of about more than 11 months in filing the application but no application was filed for condonation of delay in filing the application. The trial court, therefore, rejected the application vide order dated 27th February, 2004. Being aggrieved with the same, an appeal was preferred but the same was also dismissed by first appellate court vide order dated 10th January, 2006. Being aggrieved with 2 the same, the plaintiff has preferred the present writ petition. 3. Learned counsel for the petitioner admits that no application under Section 5 of the Limitation Act was filed in the trial court for condonation of delay in filing the application for restoration of the suit. The suit was dismissed in default on 24th January, 2003 and an application for restoration of the suit was filed on 2nd January, 2004. As per Article 122 of Schedule-I of the Limitation Act, 1963, the period of limitation is 30 days for filing the application for restoration of the suit from the date of dismissal, therefore, it was incumbent upon the petitioner to file an application under Section 5 of the Limitation Act when his application was barred by limitation. In absence of application under Section 5 of the Limitation Act, the delay could not have been condoned and trial court rightly rejected the application. The first appellate court has also upheld the said order. I do not find any illegality, perversity or jurisdictional error in both the orders passed by both the courts below so as to interfere with the same. There is no merit in this writ petition and the same is, accordingly, 3 dismissed in limine. (NARENDRA KUMAR JAIN),J. DK