Allowed

R.S.M.D.C.Ltd. v. Kamla and Ors.

Rajasthan HC8 Feb 2024CRES/70/2014

Case brief

AI extract

What is this about?

The High Court condoned a 779-day delay in filing a restoration application, citing counsel default. Relying on Rafiq vs. Munshilal, the court held the litigant cannot suffer for the advocate's inaction. Both the condonation application and the restoration application were allowed, and the appeal was restored to its original number.

What did the court decide?

The application under Section 5 of the Limitation Act was allowed; the delay was condoned; the restoration application was allowed; the appeal was restored to its original number.

R.S.M.D.C.Ltd. Vs Kamla and Ors. — Civil Procedure and Limitation | Rajasthan HC (2024)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Restoration No. 70/2014

R.S.M.D.C. Ltd.

----Petitioner

Versus

Kamla And Ors.

----Respondents

Connected With

S.B. Civil Misc. Appeal No. 12/2009

¶10

For Petitioner(s)	: Mr. Sunil Purohit
For Respondent(s)	: Mr. Sanjeev Johri, Sr. Advocate
	Mr. U.C.S. Singhvi
	Mr. Ravindra Singh
	Mr. Ravindra Acharya
	Mr. VinaySoni

¶11

HON'BLE MS. JUSTICE REKHA BORANA

¶12

Order

¶13

08/02/2024

¶14

In S.B. Civil Restoration No.70/2014

¶15

Service of the notices is complete.

¶16

The present restoration application is reported to be barred by 779 days.

¶17

An application under Section 5 of the Limitation Act has been preferred for condonation of the said delay. It has been submitted in the application that on the date when the matter was listed, the same could not be noted by the counsel and hence, the order dated 26.05.2011, which was a peremptory one, could not be complied with. Therefore, in pursuance to the peremptory order dated 26.05.2011, the appeal was dismissed by Deputy Registrar on 11.08.2011. It has been submitted that as the counsel could

¶18

[CRES-70/2014]

¶19

(2 of 3)

¶20

not appear on 26.05.2011, he was not aware of the peremptory order and further of the fact that appeal has been dismissed by the Deputy Registrar as it was dismissed without further reference to the Court.

¶21

The reasons as assigned in the application seem to be plausible one. It is clear that the default, if any, was on part of the counsel and hence, the litigant cannot be made to suffer because of inaction on part of the counsel.

¶22

The Hon’ble Supreme Court, in the case of Rafiq vs. Munshilal; (1981) 2 SCC 788, has held as under:-

¶23

"3....What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."

¶24

In view of the above ratio and the reasons aforesaid, the application under Section 5 of the Limitation Act is allowed . The delay caused in filing the present restoration application is condoned.

¶25

For the same reasons, the restoration application is also allowed . Let the appeal be restored to its original number.

¶26

[CRES-70/2014]

¶27

(3 of 3)

¶28

In S.B. Civil Misc. Appeal No.12/2009

¶29

List the matter alongwith S.B. Civil Misc. Appeal No.4821/2008.

¶30

(REKHA BORANA),J

¶31

109,110-T.Singh/Abhishek/-

R.S.M.D.C.Ltd. v. Kamla and Ors.

Case brief

What is this about?

What did the court decide?

R.S.M.D.C.Ltd. v. Kamla and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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