MEHOOL H BHUVA Vs. VANDANA H BHUVA

JUDGEMENT

(1.) C.M.3083/2010 Exemptions allowed subject to all just exceptions. This order shall dispose of the appeal filed by the appellant under Order 43 Rule 1(C) for setting aside the order dated 10.09.2009 passed by the learned ADJ, Delhi whereby the application filed by the appellant under Order 9 Rule 9 read with Section 151 of the CPC was dismissed. It may be observed here that this appeal had been filed by the appellant earlier before the learned ADJ against a judgment and order dated 03.08.2002 which was decided against the appellant on 01.12.2004 dismissing the same on account of non-appearance of the appellant in that case. According to the appellant, even though he had engaged a counsel to file and contest the appeal but the appellant was not informed by his counsel regarding dismissal of the present appeal. It was also stated that the counsel appointed by him had advised and assured him that they shall be representing his appeal and, therefore, he was under bonafide belief that counsel would take care of his appeal and would appear and contest the appeal diligently and vigilantly. It was also stated that in December, 2007 the appellant was suffering from various ailments and therefore, only in the month of August, 2000 he could enquire about the status of the appeal but as no satisfactory response was received, he contacted another lawyer and came to know that the appeal had been dismissed in default and non-prosecution. It is also submitted that no correspondence was ever exchanged by his counsel with the appellant regarding withdrawal of his vakalatnama and no information was given to him regarding the date fixed for hearing of the appeal. No court notice was issued by the learned ADJ before fixing the appeal on 01.12.2004.

(2.) THE appeal was accompanied with an application under Section 5 of the Limitation Act for explaining the delay in filing the application under Order 9 Rule 9 CPC dated 15.10.2007 after about more than 2 years inasmuch as the appeal was dismissed on 01.12.2004 and the application under Order 9 Rule 9 CPC was modified on 15.10.2007.

(3.) DURING the course of the arguments, I enquired from the learned counsel for the appellant as to whether he gave any notice to his counsel about his conduct in having not appeared when the case was listed or having not informed him about withdrawing from the case. I also enquired as to whether any complaint has been filed against counsel before Bar Council of Delhi. Both these questions have been answered in the negative.