This bench dismissed a notice of motion seeking restoration of an appeal previously dismissed for want of prosecution. The court rejected the appellant's explanation regarding loss of brief papers and illness as a 'make believe ground' unsupported by evidence.
Notice of Motion dismissed; appeal to be treated as dismissed.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.2951 OF 2004
In
APPEAL NO.1031 OF 1996
In
T. & I.J. PETITION NO.191 OF 1989
In
T. & I.J. SUIT NO.46 OF 1989
Shardaprasad Ramkishore Tiwari
(since deceased):
Manoj Shardaprasad Tiwari & Anr. : Appellants
V/s.
Shriprakash Ramkishore Tiwari
(since deceased):
Siddharth Shriprakash Tiwari & Ors. : Respondents
Mr.R.P.Ojha for the appellants.
Ms G.P.Bharucha for respondent Nos.1 to 3.
CORAM : R.M.LODHA & S.A.BOBDE,JJ.
DATE : AUGUST 22, 2006.
P.C.
1. This is a Motion for restoration of the appeal which
was dismissed for want of prosecution on 13.11.2003.
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2. The order dated 13.11.2003 reads thus:-
"Mr.Dhopatkar, Advocate appears for the
Appellant and submits that the Appellant
has taken away brief papers from him and he
has no instructions in the matter.
2. In the circumstances, we dismiss the
Appeal for want of prosecution. No costs."
3. On 4.10.2004, the Notice of Motion was taken out by
the original appellant. Affidavit-in-suppaort of the
Notice of Motion had been filed by one of his sons who is
also the Constituted Attorney of the appellant. The
original appellant is said to have died on 7.12.2005 and
his legal representatives have been brought on record.
4. In the affidavit-in-support of the Notice of Motion,
it is admitted that brief papers were collected from the
erstwhile Advocate in the month of May, 2003. Save and
except the bald statement that the appellant was about 68
years old and suffering from high diabetes, there is
nothing to indicate as to why the new Advocate could not
be appointed by the appellant after the brief papers were
collected from the erstwhile Advocate with no objection
to engage some other Advocate. The medical papers
pertaining to the ailment of the appellant are not also
placed on record. If the deponent was looking after the
case and he was the Constituted Attorney, there was no
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reason why he could not engage some other Advocate after
the erstwhile Advocate was discharged. It seems that the
age of the appellant and his ailment have been set up as
a make believe ground. The appeal came to be disposed of
on 13.11.2003 and to make out a ground for condonation of
delay, it is stated that in the month of June 2004, the
appellant engaged the present Advocate and applied for a
certified copy of the order dated 13.11.2003 which was
obtained on 3.9.2004 and then the present Motion was
taken out.
5. We are not persuaded to accept the explanation given
by the appellant. Make believe grounds seem to have been
set up for condonation of delay and for restoration of
the appeal.
6. Notice of Motion does not deserve to be granted and
is dismissed.
R.M. LODHA, J.
S.A. BOBDE, J.
1 issue framed by the court
Whether the explanation for condonation of delay in restoring a dismissed appeal is truthful and acceptable.
Manoj Shardaprasad Tiwari & Anr.
Shriprakash Ramkishore Tiwari
Siddharth Shriprakash Tiwari & Ors.
R.M. LODHA
S.A. BOBDE
As recorded by the court registry
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