DURGA DAS KUNDU Vs. KALIDAS KUNDU

JUDGEMENT

(1.) IN this interlocutory application, the petitioner has prayed for condonation of delay of 729 days in filing C.M.P. No.302 of 2008.

(2.) IT has been stated that the said C.M.P. arises out of Misc. Appeal no.339 of 2004. The said appeal was listed on 7th August, 2006 under the heading for "Hearing under Order 41 Rule 11 CPC . It has been stated that the petitioner's counsel could not mark the list and could not appear when the said appeal was called out for hearing. The appeal was, thus, dismissed for default on account of non -prosecution by order dated 7th August, 2006. It has been further stated that the petitioner came to contact his counsel on 3rd September, 2008 and made enquiry about the appeal. The counsel, thereafter, could trace and know that the appeal was dismissed due to non -prosecution as far back as on 7th August, 2006. It has been submitted that the petitioner had engaged his counsel and had handed over the brief and was assured that the counsel would appear and attend the appeal. However, under the circumstances, as stated above, the appeal was not attended and the same was dismissed for non -prosecution.

(3.) NOTICE was issued to the respondent (opposite party) in the limitation matter. Learned counsel appearing on behalf of the opposite party submitted that there was inordinate delay in filing the C.M.P. and the reasons explained in this application are insufficient. The explanation goes to show that there was laches and negligence on the part of the petitioner and that when the appeal was taken up, neither the petitioner did appear in the