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2017 DIGILAW 1472 (RAJ)

Gumana Ram v. Raju Ram

2017-07-04

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT ORDER Virendra Kumar Mathur, J. - This Restoration Application in S.B. Civil First Appeal No. 131/2013 has been filed under Order 9, Rule 4 read with section 151 CPC, against order dated 05.07.2013 passed by the Deputy Registrar (Judicial) in pursuant to peremptory order dated 29.05.2013, by which the appeal was dismissed for non-filing of notices. 2. It is submitted by the counsel for the appellant that in compliance of the order passed by this Court on 18.04.2013, he filed notices for issuance of the same but due to bona fide mistake, the notices of stay petition could not be filed. After filing of notices, the Registry pointed out defects in the notices so filed and matter was placed in Defect category. Later on, the appeal was listed in the Court on 10.05.2013 and on that day, the counsel for the appellant was directed to file the requisite notices. Thereupon, the counsel for appellant enquired his office clerk about the notices, who told that the notices have been filed and name of Mr. Vineet Jain is shown as counsel for the respondent. In the meantime, the appeal was listed before the Court and a peremptory order was passed on 29.05.2013. 3. It is submitted by the counsel for the appellant that he was under impression that Mr. Vineet Jain is appearing for both the contesting respondents, who are real brothers but when it came to his knowledge that Mr. Jain is representing respondent No. 2 only then the counsel for the appellant asked his office clerk to find out the notices filed earlier. After long search, it came to his knowledge that the notices, which were filed earlier, are lying in defect then the same were removed on 22.04.2014. However, due to peremptory order passed by the Court on 29.05.2013, the appeal has stood dismissed on 05.07.2013 by the Deputy Registrar (Judicial) for non-compliance. 4. An application under Section 5 of the Limitation Act has also been filed, praying for condoning the delay in filing the Restoration Application. 5. Heard learned counsel for the parties and perused the record. 6. In this case, the notices were already filed but due to some mistake, the same were kept for removal of defects, which shows that there was no intention to hang the matter deliberately and it was under misimpression of the counsel for the appellant that Mr. 5. Heard learned counsel for the parties and perused the record. 6. In this case, the notices were already filed but due to some mistake, the same were kept for removal of defects, which shows that there was no intention to hang the matter deliberately and it was under misimpression of the counsel for the appellant that Mr. Vineet Jain is appearing for both the contesting respondents, who are real brothers. 7. On the grounds mentioned in the restoration application and the delay condonation application, both the applications deserve to be allowed. 8. Consequently, the delay in filing the Restoration Application is condoned. The First Appeal No. 131/2013 is ordered to be restored to its original number. 9. Both the applications are accordingly allowed.