This judgment condones a delay in filing a delay condonation application and restores a civil revision petition dismissed in default. The delay was attributed to the oversight of the applicant's counsel in marking the case.
Condonation of delay and restoration of civil revision No. 1 of 2013 to original number with recall of order dated 20.05.2016.
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CMP(M) No. 370 of 2017
03.07.2017
Present: Mr. R.K. Sharma, Sr. Advocate with Ms. Anita Parmar, Advocate, for the applicant/petitioner.
Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate, for the non-applicant/respondent.
CMP(M) No. 370 of 2017
The present application has been maintained by the applicant, under Section 5 of Limitation Act, for condoning the delay of 176 days in filing the application, under Order 41, Rule 19 of the Code of Civil Procedure. As per the applicant, on 20.05.2016, civil revision No. 1 of 2013 was listed before Hon’ble SB-V, however learned counsel for the respondent could not appear before the Court as he has missed to mark the case in the cause list and Hon’ble Court vide its order dated 20.05.2016, dismissed the revision petition of the petitioner in default. It has been further averred that on December, 2016, when the petitioner came to know that the revision petition has been dismissed, he contacted his counsel and on inquiry, it revealed that the civil revision has been dismissed in default. Thereafter, the applicant/petitioner has immediately moved the present application without any further delay. The application is duly supported by an affidavit. Reply to the application has been filed wherein it has been averred that the delay is intentional, hence the application deserves to be dismissed.
Heard. At this time, this Court finds that the case was dismissed in default, as learned counsel the applicant/petitioner has oversight the cause list and could
not mark the case, therefore he could not appear before the Court. This Court after going through the averments, as discussed hereinabove, finds that the delay, as occurred, has been sufficiently explained and it was not within the control of the applicant for the reasons stated in the application. Accordingly, the present application is allowed and the delay in filing the application is condoned. The application stands disposed of.
CMP No. 2582 of 2017
The present application has been maintained by the applicant/petitioner under Order 41, Rule 19 of the Code of Civil Procedure for restoration of the civil revision. As per the applicant, on 20.05.2016, revision petition No. 1 of 2013 was listed before Hon’ble SB-V, however learned counsel for the respondent could not appear before the Court as he has missed to mark the case in the cause list and Hon’ble Court vide its order dated 20.05.2016, dismissed the revision petition in default. The application is duly supported by an affidavit. No reply to the application has been filed.
Heard. Taking into consideration the fact that the civil revision was dismissed, as the learned counsel for the applicant/petitioner, could not mark the case to cause list, due to oversight, therefore he could not appear before the Court. This Court finds that non-appearance of learned counsel for the applicant was not in his control and interest of justice would be
met, in case, the civil revision be restored to its original number. Accordingly, the present application is allowed and order dated 20.05.2016 is recalled. The application stands disposed of.
(Chander Bhusan Barowalia) Judge
3rd July, 2017 (raman)
2 issues framed by the court
Whether SMO under Section 5 of Limitation Act can be allowed to condone delay in filing condonation application due to inadvertent oversight by counsel.
Whether impugned order dated 20.05.2016 dismissing civil revision in default can be recalled.
2 provisions across 2 enactments
Applicant/Petitioner
Respondent
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
