ATIT KUMAR Vs. SARPANCH, GRAM PANCHAYAT

JUDGEMENT

(1.) Heard on I.A. No.11644/2011, an application for condonation of delay. For the reasons stated in the application which is duly supported by an affidavit, we find that sufficient cause for condonation of delay of thirty days in filing the review petition is made out. Accordingly, the I.A. No.11644/2011 is allowed. With the consent of learned counsel for the parties the matter is heard finally. In this review petition, the application seeks review of the order dated 16.5.2011 passed by learned single Judge in Civil Revision No.2620/1999 by which he had dismissed the revision preferred by the applicant and affirmed the order passed by the lower appellate Court by which the application under Order 41 Rule 19 of the Code of Civil Procedure was dismissed.

(2.) The facts, giving rise to filing of the review petition, briefly stated, are that the applicant had filed a suit seeking the relief of declaration and permanent injunction which was dismissed vide judgment and decree dated 22.4.1997. Being aggrieved by the aforesaid judgment and decree, the applicant had filed an appeal before the lower appellate Court. The lower appellate court vide order dated 7.4.1999 dismissed the appeal preferred by the applicant for want of prosecution. Thereupon, the applicant filed an application under Order 41 Rule 19 of the Code of Civil Procedure for restoration of the appeal. The lower appellate Court vide order dated 31.9.1999 dismissed the application for restoration of the appeal. The said order was challenged by the applicant in Civil Revision 2620/1999 which was dismissed by a Bench of this Court inter alia on the ground that no sufficient cause for non -appearance of the counsel on the date when the appeal was called for hearing, was made out. In the aforesaid factual backdrop, the applicant has approached this Court.

(3.) Learned counsel for the applicant submitted that the impugned order dated 16.5.2011 suffers from error apparent on the face of the record inasmuch as learned single Judge did not take into account the affidavit duly sworn in by the counsel for the applicant as well as the death certificate of sister of the appellant and held that no explanation was offered for non - appearance of the counsel and death certificate of the appellant had not been filed. It is further submitted that for the mistake or inadvertence on the part of the counsel, the party should not be penalised. On the other hand, learned counsel for the non -applicant No.1 supported the impugned order.