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2017 DIGILAW 608 (JHR)

Anandi Singh v. Upendra Singh

2017-03-28

AMITAV K.GUPTA

body2017
JUDGMENT Amitav K. Gupta, J. – This interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 1624 days in filing petition for restoration of Second Appeal No.102 of 2004 which stood dismissed on 03.01.2011 for noncompliance of the order dated 09.12.2010 passed by this Court. 2. Learned counsel for the petitioner has submitted that the aforesaid second appeal was listed on 09.12.2010 before the Bench but the Advocate''s clerk could not mark the case and the conducting counsel had no knowledge that the peremptory order directing the appellant to file the certified copy of the decree within the prescribed period was passed by the court. That the counsel for the petitioner was under the bona fide belief that the second appeal would be listed however, when the appeal was not listed before the Bench, he filed an inspection slip and came to know that the appeal was dismissed on 03.01.2011 for noncompliance of the peremptory order. It is submitted that it was due to the fault of the Advocate''s clerk and the counsel that the peremptory order could not be complied within the prescribed period. It is submitted that the petitioner should not be punished for the laches and fault of the Advocate''s clerk and the counsel. That the petitioner has a good case and if the delay in filing the application for restoration of Second Appeal No.102 of 2004 is not condoned, the petitioner shall suffer irreparable loss. 3. Learned counsel on behalf of respondent has submitted that in the application the date of knowledge of dismissal of the second appeal has not been mentioned and a general statement has been made that in the year 2014 the concerned counsel came to know about dismissal of the second appeal for noncompliance of the peremptory order. It is urged that the second appeal was dismissed earlier too, for which restoration application was filed and it was restored and there is no satisfactory explanation for the delay. 4. Heard. On perusal of the connecting file of Second Appeal No.102 of 2004 it is evident that earlier the second appeal was dismissed for noncompliance of the order dated 09.12.2010. By order dated 23.09.2004 four weeks'' time was granted to the appellant to file certified copy of judgment and decree under appeal. 4. Heard. On perusal of the connecting file of Second Appeal No.102 of 2004 it is evident that earlier the second appeal was dismissed for noncompliance of the order dated 09.12.2010. By order dated 23.09.2004 four weeks'' time was granted to the appellant to file certified copy of judgment and decree under appeal. The appellant did not comply with the order and accordingly, the second appeal was dismissed. Thereafter the appellant filed C.M.P. No.206 of 2005 which remained pending for removal of defects. After removal of defects the miscellaneous petition was listed before the Bench and by order dated 04.12.2009 the delay in filing the restoration application was condoned and by order dated 06.05.2010 the second appeal was restored to its original file. After restoration of the second appeal, the appellant was granted sufficient time to remove the defects. It is apparent that on 27.07.2010, 01.09.2010 and 01.11.2010 none appeared on behalf of the appellant whereupon on 09.12.2010 two weeks'' time, by way of last indulgence, was granted to the appellant to remove the existing defects. Despite several opportunities and sufficient time the defects were not removed accordingly the second appeal stood dismissed. 5. Now this application has been filed after a delay of 1624 days. It is abundantly clear that neither the petitioner nor the counsel have been diligent in prosecuting the case. It is true that when a litigant/party engages a counsel and entrusts the case to a counsel, then it is the duty of the counsel to keep a track of the case and inform the litigant about the status of the case. In the instant case it is not only the negligence of the counsel but the petitioner was equally negligent and callous in prosecuting the case. As narrated above the second appeal was dismissed earlier too and the court adopted a liberal approach in condoning the delay and restoring the second appeal. In such fact situation the petitioner and the counsel should have been more vigilant and prompt in complying with the direction of the court being fully aware that the second appeal has been restored. As narrated above the second appeal was dismissed earlier too and the court adopted a liberal approach in condoning the delay and restoring the second appeal. In such fact situation the petitioner and the counsel should have been more vigilant and prompt in complying with the direction of the court being fully aware that the second appeal has been restored. It is noticed that sufficient time was granted to comply with the order of the court, but on several dates none had appeared and the plea that the case could not be marked is not tenable for the simple reasons that it might not have been marked on one given date but there is no plausible explanation as to why none appeared nor the case was prosecuted on subsequent dates. 6. It is settled proposition that doctrine of limitation is founded on public policy. Section 3 of the Limitation Act, casts a duty and obligation on the court to dismiss the case if the suit or appeal is filed after the prescribed period even if limitation is not setup as a defence. Section 5 of the Limitation Act provides that any application may be admitted after the prescribed period if the applicant satisfies the court that he had sufficient cause for not making the application within such period. 7. The acceptance of explanation should be a rule when no negligence or inaction or lack of bona fides can be fastened or imputed on the defaulting party. 8. In the instant case as evidenced and noticed the petitioner has been grossly negligent and callous in prosecuting the appeal after its restoration. In fact, there is no satisfactory explanation for the delay of 1624 days because as per the office note, the counsel for the petitioner was informed about dismissal on 07.01.2011, and the explanation that he had no knowledge about dismissal of the case is not tenable. 9. Thus, in the facts and circumstances it is held that no sufficient cause is made out for the delay, hence, the application is rejected being barred by limitation.