The High Court dismissed a civil miscellaneous petition seeking the restoration of a previously dismissed restoration petition. The court held that the petitioner's explanation for non-appearance and lack of diligence were not worth acceptance. The instant petition was dismissed for non-prosecution.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 495 of 2019
CORAM : Hon ’ ble Mr. Justice Aparesh Kumar Singh
For the Petitioners : Ms. Neetu Singh, Adv. For the Opp. Parties :
04/13.12.2019 Heard learned counsel for the petitioner.
This Civil Miscellaneous Petition seeks restoration of C.M.P.
No.465 of 2017, which was dismissed on 21st June, 2019 for non-
prosecution. The order dated 21st June, 2019 is quoted hereunder:
“Order dated 10.05.2019 reads as under:
“No one appears for the petitioner.
2. This application seeks restoration of another restoration petition which was filed for restoration of Second Appeal No. 179/2009.
3. A prayer for substitution of the appellant no. 5 has been made through I.A. No. 3403/2018. This application does not disclose the date of death of the appellant no. 5 and the reasons, if any, for the day in seeking substitution. Be that as it may, by way of an indulgence, matter is adjourned to be listed after summer vacation.”
2. When the case is called out, there is no representation on behalf of the petitioners. In those circumstances, no further adjournment can be granted. Accordingly, instant petition is dismissed for non-prosecution. I.A. No. 3403/2018 stands closed.”
C.M.P. No. 465 of 2017 was preferred for restoration of C.M.P. No. 213 of 2017. C.M.P. No. 213 of 2017 was dismissed due to noncompliance of the peremptory order dated 16th November, 2017 on failure to remove the defects. C.M.P No. 213 of 2017 was preferred for restoration of Second Appeal No. 179 of 2009, which was dismissed on 15th June, 2017
for non-compliance of the peremptory order. It further appears that Second Appeal was earlier dismissed on failure to remove the defects vide peremptory order dated 5th October, 2010 and later on restored vide order dated 25th April, 2017 passed in CMP No. 455 of 2012.
Learned counsel for the petitioner submits that the case could not be marked on 21st June 2019 and remained unrepresented. Thereafter the petitioner contacted their office and came to the knowledge that CMP No.465 of 2017 has been dismissed. It is further stated that appellant no.5 in Second Appeal No 179 of 2009 who was making Pairvi of the Second Appeal had died on 2nd July, 2011 and therefore necessary steps could not be taken in that case earlier. Therefore, he was not a party in the Civil Miscellaneous Petition. It is further stated that there were certain defects to be removed in S.A. No. 179 of 2019 which in fact was filed from another office. Petitioner also makes mention of CMP No. 455 of 2012, which led to restoration of second appeal, wherein the Second Appeal no. 179 of 2009 was posted for 8.6.2017. It is also submitted that by that date no Vakalatnama was filed in the Second Appeal and the case remained unrepresented when the case was taken up.
However, looking to the conduct of the petitioner, explanation furnished is not worth acceptance. Such lack of diligence cannot be condoned as it does not serve the interests of justice.
Accordingly, instant petition is dismissed.
( Aparesh Kumar Singh, J.)
jk/
1 issue framed by the court
Whether the petition for restoration of a dismissed civil miscellaneous petition should be allowed despite the petitioner's lack of diligence and failure to appear in court.
Jagarnath Singh
Shyama Devi
Paras Devi
Tuma Devi
Most. Bidya Devi
Amrendra Singh
Aparesh Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
