MEHANT JOGINDER SINGH Vs. S B NARONHA

JUDGEMENT

(1.) . By means of this application under Order 9 Rule 9 read with Section 151 the applicant seeks for the restoration of the appeal which was dismissed for non-prosecution on 17-2-2000. The application is accompanied by an application under Section 5 of the Limitation Act seeking condonation of 21 months delay in filing the restoration application.

(2.) . The applications have been made with the averments that an appeal filed by the applicant was pending before this court and it was dismissed for non-appearance on 17-2-2000. During the pendency of the appeal the respondent had expired and an application CM No.3133/93 was filed for bringing on record the legal heirs of the deceased who were brought on record vide an Order dated 6-7-1995. The appeal, thereafter, remained pending in the category of "Regular Matters" and suddenly appeared in the cause list for hearing on 17-2-2000 and the appellant-applicant could not know about the listing of the appeal or its hearing. After some time, the appellant met his counsel Mr.M.L.Dewan and enquired about the fate of the appeal but he was not aware of the same. Hence on further enquiry the appellant came to know that the appeal was dismissed for non-prosecution on 17-2-2000. The appellant engaged a new counsel. It is also stated that the present appeal related to property No. 36, Link Road, Lajpat Nagar-III, New Delhi while another connected appeal related to property No. 35 Link Road, Lajpat Nagar-III, New Delhi was compromised between the parties and, therefore, there was a possibility of the earlier counsel of the appellant entertaining confusion about the present appeal having also been appeal has also compromised and did not pursue. The appellant is stated to be an old man aged about 68 years and had been waiting for the decision of first appeal for the last about 12 years. It is stated that the appellant would suffer irreparable loss and injury if the appeal is not restored and is not heard on merits. The reason for delay in filing of the application is attributed to the confusion entertained by the previous counsel or negligence on his part to check up the true position. The application is supported by an affidavit of the applicant-petitioner.

(3.) . The applications are being opposed on behalf of the respondent and replies supported by affidavit have been filed, thereby denying the averments and allegations made in the application about there being any sufficient cause or justification for setting aside the dismissal of the appeal. On the other hand it is stated that the absence of the appellant/counsel at the time of hearing of the appeal on 17-2-2000 was deliberate and there exists no sufficient cause and there could not be any alleged confusion as averred by the appellant.