Dismissed

Ram Niwas S/O Bansidhar v. Inderpal S/O Thawar Singh

Rajasthan HC24 Jan 2019CRES/474/2018

Case brief

AI extract

What is this about?

This order dismisses a restoration application filed by the appellant that was delayed by 908 days. The court held that the appellant's claim of ignorance regarding a prior dismissal order did not constitute sufficient cause to condone the delay under Section 5 of the Limitation Act, 1963. Consequently, the restoration was refused.

What did the court decide?

The application for condonation of delay and the restoration application for S.B. Civil Misc. Appeal No.2628/2006 were dismissed.

Ram Niwas S/O Bansidhar Vs Inderpal S/O… — Civil Procedure and Limitation | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Restoration Application No. 474/2018

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S.B. Civil Misc. Appeal No.2628/2006

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Ram Niwas S/o Bansidhar, aged about 38 years, by caste Saini, R/o Subhash Nagar, Narnaul, Distt. Mahendragarh (Haryana)

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----Appellant

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Versus

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Inderpal S/o Thawar Singh, by caste Swami (Bairagi), R/o Dhani Bhandor, Police Station Rampura Rewari, (Rewari), Haryana

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Hakim Singh S/o Heera Lal, R/o Mundia Kheda, presently residing at Rewari Road, Narnaul, District Mahendragarh (Haryana).

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New India Insurance Company Ltd. Branch Office, Jhunjhunu (Raj.).

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----Respondents

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For Petitioner(s) : Mr. S.K. Singodiya Adv.

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HON'BLE MR. JUSTICE PRAKASH GUPTA Order

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24/01/2019

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The application for restoration has been filed by the appellant to restore the appeal, which was dismissed by the Deputy Registrar (Judicial) dt. 26.10.2015 in compliance of peremptory order dt. 13.08.2015.

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The application has not been filed within the prescribed time of limitation.

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An application under Section 5 of the Limitation Act has been filed to condone the delay of 908 days in filing the said application.

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The concerned misc appeal had been filed in the year 2006. The required PF & notices were not filed since 2009 in the appeal. On 13/8/2015, the following order had been passed:-

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[CRES-474/2018]

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(2 of 4)

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“In these 1070 Civil Misc. Appeals, pending since 200-2007 for more than eight years, the Counsels have either not taken the requisite steps or removed the defects, or the matters are lying in default for filing PF and notices. The cases are still kept in the category of ‘Defect/Default’, awaiting requisites to be filled by the Counsels.

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Learned counsels appearing for the respective parties have assured the Court that they will take the steps to remove the defects, within a period of one month.

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On the the assurance given by learned counsels appearing for the respective parties, one months’s time is allowed to them, to take steps to remove the defect; to submit the required PF and notices in the office, or any other requisites to be supplied by them.

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Deputy Registrar (Judicial) will make necessary arrangements for organizing the records in the sequence, in which they are listed today, and depute sufficient number of clerks for the assistance of the counsels, or their clerks (Munshis) to do the needful, within in month.

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If the requisite steps are not taken on or before 14.09.2015, the Civil Misc. Appeals will stand dismissed without any reference for the Court’s order.

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A copy of the order will be place in all the connected files.”

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It is submitted by learned counsel for the applicant that the appeal was dismissed on 26.10.2015 along with other appeals in compliance with order dated 13.08.2015. The counsel for the appellant was not aware regarding the fact that the peremptory order was passed by the Court on 13.08.2015. The appellant was under the impression that the appeal is pending and the stay order was operating, but in the month of April, 2018 when the appellant received summons for attendance dated 16.04.2018 from Tehsildar Narnaur, Haryana, he immediately contacted his counsel and inquired about the matter and only then the appellant did come to know about the dismissal of the appeal.

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[CRES-474/2018]

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(3 of 4)

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I have considered the submissions made by learned counsel for the applicant and have perused the material available on record.

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Hon’ble Apex Court in the case of D. Gopinathan Pillai vs. State of Kerala and Anr. reported in 2007(2) SCC 322 observed as under:

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“Delay cannot be condoned mere on sympathetic ground, when mandatory provision not complied with and delay not propertly, satisfactorily and convincingly explained. Delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason.”

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Similarly, the Hon’ble Apex Court in the case of Brijesh

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Kumar & Ors. Vs. State of Haryana reported in 2014 (11) SCC 351 observed as under:

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“11. The courts should not adopt an injusticeoriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone.”

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In the present case, the appellant-claimant has sought condonation of delay of 908 days in filing of the restoration application merely on the ground that the counsel was not aware about the order dated 13.08.2015. I am of the considered view that ignorance of a court order is not an excuse to condone the inordinate delay of 908 days. Hence, in view of the judgment

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(4 of 4) [CRES-474/2018]

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quoted above and in the facts and circumstances of the case, it is held that the grounds mentioned by the applicant in the application are not sufficient and reasonable to condone the inordinate delay of 908 days in filing the restoration application.

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The application for condonation of delay is therefore, accordingly dismissed and, consequently, the restoration application is also dismissed.

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(PRAKASH GUPTA),J

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Mohit/21

Ram Niwas S/O Bansidhar v. Inderpal S/O Thawar Singh

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Ram Niwas S/O Bansidhar v. Inderpal S/O Thawar Singh

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