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2012 DIGILAW 1691 (JHR)

Ashok Kumar v. Bhaura Kumhar

2012-12-07

N.N.TIWARI

body2012
ORDER I.A. no.2386 of 2012 In this application, the petitioners have prayed for condonation of delay in filing C.M.P. being C.M.P. no.223 of 2012. 2. It has been stated that the petitioners had preferred Second Appeal being S.A. no.105 of 2004. They had engaged their counsel, who had assured the appellants to look after the case and inform about the development of the appeal. The petitioners waited for a long time, but did not get any information. Whenever the petitioners enquired about the case, they were told that their appeal is pending. The petitioners' counsel-Mr. Upendra Prasad died on 13.01.2011. The petitioners enquired from other counsel attached to his office, but they were unable to provide any information. The petitioners then contacted another counsel of this Court, who gathered information by searching the case through Internet and found that the petitioners' appeal was dismissed long back on 07.10.2004.The petitioners on getting information instructed the counsel to take appropriate step for restoration of the appeal. Thereafter, Miscellaneous Petition was filed, but in the process, there was long delay of more than 2000 days. The petitioners, thus, filed this application for condonation of delay in filing C.M.P. no.223 of 2012. 3. It has been submitted that there was no wilful delay or laches on the part of the petitioners in not filing Miscellaneous Petition for restoration of Second Appeal no.105 of 2004. It has been submitted that there was no fault on the part of the appellants, who had engaged their counsel and the counsel had assured them to look after the appeal. The petitioners were in bonafide belief that they will be informed about any development, but the same was not done. Ultimately, learned counsel also died and after a long time they could know about the dismissal of the Second Appeal. There was no negligence on the part of the petitioners in not filing Miscellaneous Petition and the instant application earlier. They were prevented from doing so under the said circumstance beyond their control. 4. It has been further submitted that the Second Appeal had arisen out of the Title Suit, which is in respect of immovable property involving an area of more than three acres of land. The petitioners shall suffer irreparable loss and injury and shall be highly prejudiced, if the delay in filing C.M.P. is not condoned. 5. The application has been opposed by the respondents. The petitioners shall suffer irreparable loss and injury and shall be highly prejudiced, if the delay in filing C.M.P. is not condoned. 5. The application has been opposed by the respondents. In the reply, it has been stated that there was inordinate delay in filing C.M.P., which shows the negligence and laches on the part of the petitioners. The explanation is not sufficient for covering such long delay. The petitioners lost both in the trial court and in first appellate court. There is no merit in the Second Appeal. The judgments and decrees of learned courts below have become final. The respondents have to engage counsel and file reply to Interlocutory Application and have to incur heavy expenses unnecessarily and for their no fault. The petitioners, thus, do not deserve any lenient consideration by this Court. This application is liable to be rejected. 6. I have heard learned counsel for the parties. Though the application has been filed after a long delay, the petitioners have explained that the appeal was properly filed and learned counsel had given assurance to inform the petitioners in case of any development. The counsel engaged by the petitioners, subsequently died. Thereafter they engaged another counsel and on inspection of the record by them, they came to know about the dismissal of the Second Appeal. The petitioners, thereafter, instructed their counsel to file Miscellaneous Petition for restoration of Second Appeal and the application for condonation of delay in filing C.M.P. 7. Though the respondents have opposed the petitioners' application for condonation of delay, they have not categorically denied the aforesaid facts in reply filed by them. The respondents have also not denied the fact regarding assurance given by learned counsel and death of his earlier counsel in 2011. The said explanation of the petitioners is, thus, uncontroverted. I find that the said explanation is reasonable at least for accepting the contentions of the petitioners that they were not at fault in not filing the application earlier. 8. However, the fact remains that the respondents for a long period of time enjoyed the judgments and decrees of the courts below as final -due to dismissal of the Second Appeal. Suddenly, after a long time they got information about C.M.P. They have to engage counsel to defend this application. 9. 8. However, the fact remains that the respondents for a long period of time enjoyed the judgments and decrees of the courts below as final -due to dismissal of the Second Appeal. Suddenly, after a long time they got information about C.M.P. They have to engage counsel to defend this application. 9. Taking into consideration, the said facts and circumstances, this application is allowed and delay in filing C.M.P. is condoned, subject to payment of cost of Rs.5000/-(five thousand) by the petitioners to the respondents by 31st December,2012. Delay condoned.