ANANDI SINGH Vs. UPENDRA SINGH

JUDGEMENT

(1.) This interlocutory application has been filed under Sec. 5 of the Limitation Act for condoning the delay of 1624 days in filing petition for restoration of Second Appeal No.102 of 2004 which stood dismissed on 03.01.2011 for noncompliance of the order dated 09.12.2010 passed by this Court.

(2.) Learned counsel for the petitioner has submitted that the aforesaid second appeal was listed on 09.12010 before the Bench but the Advocate's clerk could not mark the case and the conducting counsel had no knowledge that the peremptory order directing the appellant to file the certified copy of the decree within the prescribed period was passed by the court. That the counsel for the petitioner was under the bona fide belief that the second appeal would be listed however, when the appeal was not listed before the Bench, he filed an inspection slip and came to know that the appeal was dismissed on 03.01.2011 for noncompliance of the peremptory order. It is submitted that it was due to the fault of the Advocate's clerk and the counsel that the peremptory order could not be complied within the prescribed period. It is submitted that the petitioner should not be punished for the laches and fault of the Advocate's clerk and the counsel. That the petitioner has a good case and if the delay in filing the application for restoration of Second Appeal No.102 of 2004 is not condoned, the petitioner shall suffer irreparable loss.

(3.) Learned counsel on behalf of respondent has submitted that in the application the date of knowledge of dismissal of the second appeal has not been mentioned and a general statement has been made that in the year 2014 the concerned counsel came to know about dismissal of the second appeal for noncompliance of the peremptory order. It is urged that the second appeal was dismissed earlier too, for which restoration application was filed and it was restored and there is no satisfactory explanation for the delay.