MAZHAR IMAM Vs. ZAIBUN NISSAH

JUDGEMENT

(1.) In this application, the petitioners have prayed for condonation of 1161 days delay in filing C.M.P. No. 18 of 2009. It has been stated that the petitioners had filed Second Appeal No. 620 of 2004. When the appeal was taken up under the heading 'For Orders' on 30.9.2005, nobody appeared on behalf of the appellants. However, since there were some defects, this Court granted one week's time to remove the detects. Inspite of allowing the said time, the defects were not removed. The appeal stood dismissed for default for non-compliance of the peremptory order.

(2.) It has been stated that the petitioners had engaged their counsel and they had assured that all the required steps shall be taken. However, since the petitioners did not get any information for a long time, they contacted their counsel but no satisfactory reply was given by their counsel. The petitioners, thereafter, engaged another counsel by taking 'No Objection' from the previous counsel in September 2008. The petitioners got record inspected and found that the appeal was dismissed for default long back. The petitioners, thereafter, filed C.M.P. for restoration of the second appeal but due to the reasons aforesaid, there was delay in filing C.M.P. It has been submitted that there was no wilful laches or negligence on the part of the petitioners and they were fully dependant on their previous counsel, who did not inform about the dismissal of the appeal. It has been further submitted that if the delay is not condoned and the C.M.P. is not entertained, the petitioners shall suffer irreparable loss and injury.

(3.) Notices were issued to the respondents-opposite parties. Inspite of service of notice through the advertisement in the newspaper, respondent Nos. 1 and 3 only appeared and contested this application. It has boon stated, inter alia that there is no proper explanation for inordinate delay in filing C.M.P. and that no ground has been made out for condonation of such a long delay.