IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 472 of 2011 Vishnu Sharma, S/O Sri Puran Chand Sharma. … Petitioner. Versus Additional District Judge/III F.T.C. Haridwar and others. … Respondents. Mr. Siddhartha Singh, Advocate, learned counsel for the petitioner. Mr. P.C.Bisht, Brief Holder, learned counsel for the respondent nos. 1 and 2. Mr. Manish Bhardwaj, Advocate, learned counsel for the respondent no.3. Date March 17, 2011. Hon’ble B.S.Verma, J. (Civil Misc. Application No. 1972 of 2011) Learned counsel for the caveator-respondent no.3 has prayed that the writ petition may be disposed of at admission stage without counter version. Heard learned counsel for the parties and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 8-3-2011 passed by respondent no. 1(Annexure no. 1 to the petition) and the order dated 4-4-2009 passed by respondent no. 2 (Annexure No. 2 to the petition) and further to allow the delay condonation applications and to restore the Original Suit no. 172 of 1999 Marvari Panchayati Dharamshala Vs. Vishnu Sharma and others for decision on merits. According to the petitioner, respondent no.3 herein filed a suit, bearing O.S. No. 172 of 1999, against the petitioner and respondent nos. 4 and 5 herein for a decree of injunction and possession in the Court of Civil Judge (Junior Division) Haridwar inter alia on the ground that the defendants are raising construction over the property of the plaintiff. It appears that the suit proceeded ex parte against the defendant-petitioner and the suit was ultimately decreed ex parte on 30-7-2005. The defendant-petitioner filed an application under Order 9, Rule 13 C.P.C. along with an application for condonation 2 of delay under Section 5 of the Limitation Act (paper no. 3-C2) before the II Additional Civil Judge (Junior Division) Haridwar, which was registered as Misc. Case No. 2 of 2006. The trial court rejected the application under Section 5 of the Limitation Act and on that ground the restoration application was also rejected by order dated 4-4-2009. According to the petitioner the delay was of about 9 months in filing the application for setting aside the ex parte decree. Aggrieved by the order dated 4-4-2009, the petitioner preferred an appeal before the appellate court i.e. Additional District Judge/III F.T.C. Haridwar. It appears that the appeal too was not filed within time, therefore, an application for condonation of delay was filed along with the appeal. The same was registered as Misc. Case No. 303 of 2009. The learned appellate court did not find favour with the petitioner and rejected the application for condonation of delay by his order dated 8-3-2011, which gave rise to the present writ petition. Learned counsel for the petitioner has vehemently contended that there was negligent on the part of the counsel for the petitioner-defendant and the suit proceeded ex parte against the defendants as the counsel did not inform the petitioner in time. Learned counsel for the petitioner has submitted that the plaintiff can be compensated by award of cost while condoning the delay and has placed reliance upon the judgment of the Apex Court in the case of N.Balakrishnan Vs. M. Krishnamurthy (Allahabad Rent Cases, 1998(2) page 664]. It is well settled that the power to condone the delay is the discretionary power of the Court and the courts should be liberal in condoning the delay. I am fortified in my view by the Apex Court judgment in the case of Apangshu Mohan Lodh and others Vs. State of Tripura and others [(2004) 1 Supreme Court Cases, Page 119]. In the facts and circumstances of the case it would be in the fitness of things as well as in the interest of justice that the delay in filing the appeal may be condoned and the matter may be 3 remanded to the appellate court to decide the Miscellaneous Appeal filed by the petitioner on merits. Accordingly, the writ petition deserves to be partly allowed. The writ petition is partly allowed. The order dated 8- 3-2011 passed by the appellate court is set aside. The application of the petitioner-appellant moved under Section 5 of the Limitation Act in Misc. Case No. 303 of 2009 is allowed. The appellate court shall decide the appeal filed by the petitioner-appellant on merits, without being influenced by the order of this Court, expeditiously as far as possible. All pending applications stand disposed of. (B.S.Verma, J.) RCP