Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 238 (JHR)

Anita Devi v. State Of Jharkhand

2008-02-26

N.N.TIWARI

body2008
ORDER Narendra Nath Tiwari, J. 1. In this C.M.P., the petitioner has prayed for restoration of S.A. No. 583 of 2004, which was dismissed for non-compliance of the peremptory order dated 30.9.2005. 2. It has been stated that there was delay of 23 days in filing C.M.P. and, as such, an application (I.A. No. 3364 of 2007) has been filed praying condonation of delay. In both the C.M.P. and the I.A., grounds are almost similar and they are being heard together with the consent of the parties. 3. It has been stated that by order dated 30.9.2005 passed in S.A. No. 583 of 2004, three weeks peremptory time was allowed for removing the defect(s). Inadvertently, learned Counsel for the petitioner could not note down the peremptory time and, as such, could not comply with the order within the prescribed period. 4. Subsequently, when the notice was served by the office, the petitioner came to know that the appeal was dismissed for non-compliance of the peremptory order. The petitioner thereafter took immediate step for filing the C.M.P. and also for filing Interlocutory Application for condonation of delay. It has been stated that the petitioner had engaged her counsel and handed over the brief to him and there was no fault on her part. 5. Learned Counsel inadvertently could not note down the period in which the defect(s) was/were to be removed and it was sheer Inadvertence and there was no intentional laches and negligence on the part of the petitioner, but on the part of the learned Counsel too under the circumstance beyond his control. There was delay in taking steps, which resulted dismissal of the Second Appeal for non- compliance of the peremptory order. It has been submitted that if the Second Appeal is not restored, the petitioner shall be put to suffer irreparable loss and injury. 6. Learned Counsel appearing on behalf of the respondents contested the C.M.P. as well as Interlocutory Application. It has been submitted that the petitioner was negligent in pursuing her case and even after long time, the defect(s) was/were not removed. Non-compliance of the order cannot just be taken us unintentional. The petitioner has also not furnished the reasonable explanation and thus the C.M.P. as well as Interlocutory Application are liable to be rejected. 7. I have heard learned Counsel for the parties. 8. Non-compliance of the order cannot just be taken us unintentional. The petitioner has also not furnished the reasonable explanation and thus the C.M.P. as well as Interlocutory Application are liable to be rejected. 7. I have heard learned Counsel for the parties. 8. It has been stated that the petitioner has engaged her counsel and that it was an inadvertence on the part of the learned Counsel that he could not note down the peremptory time within which the step was to be taken. Though learned Counsel for the respondents has contested the said petition/application, no affidavit in opposition has been filed disputing the said facts on record. 9. From the statements made in the writ petition and submissions made by the learned Counsel for the parties, it appears that there was inadvertence, on the part of the learned Counsel, for that the petitioner cannot be made to suffer. The petitioner had filed the Second Appeal and due to the said inadvertence on the part of the learned Counsel, the same has been dismissed. 10. Considering the above, this Court is satisfied that there was no negligence or laches on the part of the petitioner or her counsel in not taking steps within the prescribed time. Since the petitioner has got information belatedly, there was no negligence in not filing the C.M.P. within time as well. 11. In view of the above, Interlocutory Application is allowed. The delay in filing C.M.P. is allowed and for the said reason, the said C.M.P. is also allowed. S.A. No. 583 of 2004 is restored to its original file/stage. 12. Both the C.M.P. and LA. No. 3364 of 2007 stand disposed of. 13. The petitioner is granted further one weeks time to remove the defects, falling which the memo of appeal shall stand rejected without further reference to a Bench. Appeal rejected.