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2019 DIGILAW 481 (RAJ)

State of Rajasthan v. Bhanwar Lal Nagwal S/o Late Shri Ramnath

2019-02-11

P.K.LOHRA

body2019
ORDER : 1. Applicant-appellants, State of Rajasthan and its other officers, have laid this application under Order 41 Rule 19 read with Section 151 CPC for seeking restoration of accompanying Civil First Appeal No. 25/2006. The appeal was dismissed in default and for want of prosecution on 29th of March, 2016. As the restoration application is filed after delay of 949 days, on behalf of applicants, an application under Section 5 of the Limitation Act is also filed for seeking condonation of delay. The restoration application as well as application under Section 5 of the Limitation Act is supported by affidavit of the officer-in-charge of the case. 2. Upon perusal of order dated 29th of March, 2016, it is abundantly clear that there was no representation on behalf of applicant-appellants for more than four years and the appeal was deferred from time to time. From the order-sheets of the accompanying first appeal, it is also borne out that since 20th of October, 2011 uptil dismissal of the appeal, in default and for want of prosecution, nobody had appeared on behalf of the appellants. The reasons spelt out in the application by the applicants for restoration are also far from satisfactory. Well it is true that Rule 19 of Order 41 CPC envisage readmission of appeal dismissed for default but then an incumbent seeking readmission of appeal is required to furnish sufficient cause which prevented him from appearing when the appeal was called on for hearing. 3. Be that as it may, a total carelessness or negligence, or omission, or continuous omission by the counsel/litigant without any bona fide reason, cannot be construed as proof for nonappearance much less sufficient proof within the meaning of Rule 19 of Order 41 CPC. The restoration application is absolutely silent about continuous absence of the Government Counsel for more than four years and therefore sans sufficient cause no case is made out for restoration of appeal. It is also noteworthy that instant appeal is filed by the State and its officers and the cause of State is espoused by its law officer Addl. Advocate General but despite that for more than four years no endeavour was made on behalf of the applicant-appellants to appear before the Court when the appeal was called on for hearing. 4. It is also noteworthy that instant appeal is filed by the State and its officers and the cause of State is espoused by its law officer Addl. Advocate General but despite that for more than four years no endeavour was made on behalf of the applicant-appellants to appear before the Court when the appeal was called on for hearing. 4. There is yet another aspect of the matter that restoration application itself is filed after inordinate delay of 949 days and the application under Section 5 of the Limitation Act is conspicuously silent about cause of delay. The reasons for delay of 949 days, as mentioned in the application, are per se far from satisfactory and not inspiring confidence. The certified copy, which is filed with the application for restoration, was applied by the counsel on 2nd of July, 2016, i.e. after expiry of period of 30 days, and it was obtained on 4th of July, 2016, however, the restoration application is presented before the Court on 3rd of December, 2018, i.e. after a lapse of 17 months. Strangely, there is no explanation much less plausible explanation for delay of 17 months inasmuch as the averments made in the application under Section 5 of the Limitation Act in this behalf are absolutely vague, cryptic and unspecific. Moreover, the facts averred in the restoration application as well as in the application under Section 5 of the Limitation Act are supported by affidavit of the officer-in-charge and not by the counsel, who represented cause of the State. The role of the officer-in-charge is to render assistance to the Law Officer or Government Advocate and not to appear before the Court and once a brief is entrusted to a Government Advocate, it is duty of the Government Advocate to put in appearance before the Court. 5. A very significant fact that for more than four years nobody represented cause of applicant-appellants in the accompanying appeal and the restoration application is filed after delay of 949 days without explaining delay on wholly nonest grounds cannot loose sight of the Court. The State as a litigant cannot be given special concession or privilege in the matter of condonation of delay. The State as a litigant cannot be given special concession or privilege in the matter of condonation of delay. The words “sufficient cause” envisaged under Section 5 of the Limitation Act require liberal construction, but in the guise of liberal construction, delay cannot be condoned for mere askance when no cause much less sufficient cause is forthcoming. Law of limitation is based on public policy and cannot be given complete go-bye in a case wherein there is total callousness on the part of a litigant to plead its cause. This Court is quite conscious that procedural law like CPC is designed to facilitate justice, as not being a penal enactment, which requires interpretation in furtherance of justice and not to frustrate it but total indolence and apathy of a litigant cannot be overlooked at the cost of camouflaging such serious omissions on its part. Likewise, Section 5 of the Limitation Act requires liberal construction, however, it does not mean to put premium over deliberate negligence, callousness and dormancy of a litigant in pleading its case. 6. In totality, I am unable to find good and sufficient cause to condone delay in the matter, inasmuch as the same is unexplained and therefore even liberal construction of the term “sufficient cause” too cannot come to the rescue of the applicant-appellants for condonation of delay. 7. Resultantly, the application under Section 5 of the Limitation Act is rejected and rejection thereof also entails rejection of the restoration application.