Devi Lal Batham vs Smt. Usha alias Jaya and Another

This application is filed for seeking review of the order dated 14.09.2011 passed in MCC No. 1130/2011.

The learned counsel for the applicant submitted that there was default on the part of the counsel of applicant, who had not processed the matter and because of peremptory order, the appeal was dismissed. It is submitted by the applicant that for the fault of the counsel, the litigant should not suffer and prays that the order dated 14.9.2011 may be reviewed.

By the order dated 14.9.2011, the matter was considered at length and we passed the order which reads thus:

Shri Manish Jain, Counsel for the applicant.

This M.M.C is filed for restoration of FA No. 271/2008 which was dismissed because of non-compliance of peremptory order dated 2.7.2008. This Court directed in FA No. 271/2008 thus:

I.A. No. 6731/2008, this is an application u/s 5 of Limitation Act for condonation of delay.

Let notice of this IA be issued to the respondents.

Requisite by registered post with acknowledgement due be filed within 10 days, failing which the appeal shall stand dismissed without further reference to the Bench.

It appears that the aforesaid order was not complied with within ten days. So the appeal was dismissed. It will be pertinent to mention here that the first appeal preferred by the appellant was also barred by limitation. Thereafter this application has been filed after a period of 1076 days beyond the period of limitation. In the application, the applicant has stated that the previous counsel had not communicated regarding peremptory order dated 2.7.2008 and the applicant was confident that his appeal is pending. Thereafter on 14.7.2011 when the applicant came to Jabalpur, then he got information about the dismissal of the appeal.

From the perusal of the aforesaid facts, it is apparent that for 3 years, the applicant had not cared in respect of his appeal and has filed the present application for restoration after about three years. There is no satisfactory explanation in the application u/s 5 of the Limitation Act. The applicant ought to have remained vigilant or to have enquired in respect of progress of the appeal within a reasonable period but non enquiring for these years cannot be said to be a reasonable period.

In these circumstances, we do not find any reason even to issue notice on I.A. No. 9358/2011 u/s 5 of the Limitation Act. The application is rejected. In consequence of it, MCC No. 1130/2011 is also dismissed with no order as to costs.

From the perusal of the aforesaid, it is apparent that at the time of passing of the order, we considered the aforesaid aspect and found that no case was made out for condonation of delay of 1076 days in filing of restoration application.

Though the learned counsel for the applicant has cited judgments of the Apex Court reported in Mahanth Ram Das Vs. Ganga Das, Mata Din Vs. A. Narayanan, and Narasingha Charan Swain Vs. Jairam Jena and Others, Narasingha Charan Swain vs. Jairam Jana and Ors and submitted this review application be allowed. But from the perusal of the aforesaid, it is apparent that the factual position in the aforesaid cases was entirely different. The restoration application was filed in those cases with due diligence, but in the present case, the restoration application was filed after 1076 days which was an inordinate delay. The aforesaid judgments relied upon by the learned counsel for the applicant are not applicable in the facts of the present case.

In view of the aforesaid, no case is made out for reviewing the order dated 14.09.2011. This review petition is dismissed as is found without merit.