HIREN SINGHA ROY Vs. HOWRAH IMPROVEMENT TRUST

JUDGEMENT

(1.) Leave granted.

(2.) We have heard the learned Counsel for the parties. The writ appeal filed by the appellant before the Division Bench of the High Court was within time but it was dismissed in default on 2/9/1997 as nobody appeared on behalf of the appellant before the High Court on that day. On 23/7/1998 an application for recalling the order dated 2/9/1997 was filed by the appellant but it was dismissed on the ground of limitation invoking the provisions of Article 122 of the Limitation Act which prescribes a period of 30 days for making an application for restoration of an appeal dismissed in default. The High Court has held that the date of knowledge on which the order of dismissal was passed was immaterial. In the application for restoration the appellant had pleaded the material facts which are reproduced hereunder :-

(3.) It appears that no reply to the application for restoration was filed before the High Court and the application was not opposed on the facts pleaded therein. Even in the counter affidavit filed in this Court the fact that the appellant Counsel has fallen ill is not disputed. What is stated in the counter affidavit filed here is as under :-