Lntazar Ahmad and Others v. Swaliha Khatoon and Others
2013-02-04
ARVIND KUMAR TRIPATHI II
body2013
DigiLaw.ai
Arvind Kumar Tripathi II, J.— Heard Sri S.K. Mehrotra, learned counsel for Intazar Ahmad and Sri U.S. Sahai, learned counsel for the respondents. 2. This application has been moved for recalling order dated 20.12.2005 by which the writ petition was dismissed in default. This application is supported by affidavit. The main reason in the delay has been explained in para 4 of affidavit along with the delay and recall application. 3. It has been mentioned that his counsel has informed his colleague to watch the case and seek adjournment on the date 20.12.2005. It has been mentioned that his junior colleague was under impression that the case has been adjourned on his request and thereafter when the client contacted him he made an inquiry and then he came to know that the case has been dismissed. 4. A counter affidavit has been filed by Mohd. Aarakin. A perusal of the affidavit reveals that the said facts has not been denied. 5. Learned counsel for the appellant has relied upon the case law Perumon Bhagwathy Devaswom, Perinadu Village v. Bhargavi Amma (Dead) by LRs. & Ors.. (2008) 8 Supreme Court Cases 321. 6. The Apex Court has considered the peculiar procedure and circumstances in the proceeding in the High Court and has held that in the High Court Cases are not listed on periodical basis. Once the appeal is admitted, it goes into storage and is listed before the counsel, only when it is ripe for hearing or when some interim application filed. It is common for appeals pending in High Courts not to be Jisted at all for several years. There is nothing the appellant is required to do during the period between admission and hearing. 7. Considering the above decision and fact, this court is of the view that the recall application is liable to be allowed with cost of Rs.500/- which is to be paid within 15 days and will be paid in Oudh Bar Association for its library. After payment and showing the receipt order dated 20.12.2005 is recalled and the second appeal is restored to its original number. 8. Stay order dated 12.12.2012 shall remain operate till the next date of listing. _____________