USHA MANDAL Vs. GITA DAS

JUDGEMENT

(1.) BY this application filed under Order 41, Rule 19, read with Section 151 of the CPC, the appellant/petitioner has prayed for readmission of the appeal, which was dismissed for default on 12. 5. 2004, by recalling the order.

(2.) HEARD Ms. B. Choudhury, learned counsel for the appellant/petitioner and Mr. P. K. Roy Choudhury, the learned counsel for the respondent/opposite party.

(3.) THE second appeal filed by the petitioner was set down for hearing and when the matter was called upon none having appeared on behalf of the appellant, the appeal was dismissed for default 12. 5. 2004. This necessitated the appellant to file an application under Order 41, Rule 19 CPC for readmission of the appeal, which was registered as Misc. Case No. 1845/2006. In this application the petitioner has stated at paragraphs 5 and 6 that during the relevant time, since the engaged Senior counsel Mr. A. R. Banerjee, having been gone out of the station, due to illness of his mother, the case was in charge of the junior counsel. The learned junior counsel, during the relevant period was in bereavement due to death of her near relative and was irregular in attending the Court. It is further stated that the aforesaid appeal was listed in the terminal list No. 3 and the said page of the cause list, listing the appeal was not furnished to her and as such it was not within her knowledge about the listing of the case for hearing on that day. Consequently the learned counsel could not appear when the appeal was called upon for hearing and hence the same was dismissed for default. It is further stated that only when the appellant on getting the information from the Registry about the dismissal order, enquired with the learned counsel about the case, it came to her knowledge about the dismissal of the case and in the process, there has been delay of 772 days in filing the present application to restore the appeal to file. Submitting the aforesaid grounds to be sufficient cause for nonappearance, the petitioner has prayed for restoration of the appeal. The appellant/petitioner/has also filed a separate application for condonation of delay, which was registered as Misc. case No. 1872. The respondents opposite party filed objection against the prayer for restoration. The justifiability, truthfulness, or otherwise of the grounds taken to condone the delay, in filing the application has not been questioned by the respondents. The respondents raised objection only on the maintainability of the application for restoration as well as condonation petition.