BASANT BAHAR RESTAURANT Vs. RAM GOPAL SHARMA

JUDGEMENT

(1.) This oreder will dispose of the application dated 21.11.1990 under section 5 of the Limitation Act moved by the petitioner for condoning the delay in filing the application for restoration of his appeal dismissed in default on 2.3.1990. The brief facts are as under :-

(2.) The appeal filed by the appellant came up before Farooq Hasan, J. on 15.12.1989 when it was directed that the appellant should furnish the solvent security for the decretal amount to the satisfaction of the learned trial court and thereafter the appeal would be considered for admission and the security was to be furnished within one month. The case, thereafter, came up before the same Bench on 2.2.1990 when, as agreed by the learned counsel for the appellant as also for the respondent, it was directed to be listed on 19.2.1990. It was listed on 19.2.1990 before D.L. Mehta, J. (as he then was) when the learned counsel for the appellant as also the learned counsel for the respondent appeared and it was directed that it should be listed after a week for admission. The case was listed before this court on 2.3.1990 when, admittedly, the name of the learned,counsel for the appellant had appeared in the cause-list, but none appeared on behalf of the appellant although the learned counsel for the respondent was present and the appeal was dismissed in default for non-prosecution. Thereafter, an application under order 41 rules 17 and 19 of the Code of Civil Procedure was moved in (his court on 21.11.1990 with a delay of 234 days and the present application under section 5 of the Limitation Act was also moved in this case.

(3.) In this application it has been stated that due to over sight the learned counsel for the appellant could not mark the case in his cause-list and could not appear in court when the case was called and that one or two days ago (prior to the filing of the application) the appellant informed his counsel that the appeal has been dismissed and the opposite party was trying to execute the decree and, thereafter, the counsel searched for the case and learnt that it had been dismissed on 2.3.1990 and that the delay occurred in filing the application due to the reasons mentioned above.