Gokul Singh vs Khama Kanwar And Others

Arun Bhansali, J

Heard learned counsel for the parties on application filed by the applicant under Section 5 of the Limitation Act seeking condonation of delay in filing the restoration application.

It is inter alia indicated that by order dated 16.5.2011, a peremptory order was passed for removing the defect within a period of one week, failing which, it was ordered that appeal shall stand dismissed without reference to the court.

The defect pointed out by the office pertains to non-filing of compensation certification regarding pre-deposit under Section 173(1) of the Motor Vehicles Act, 1988, however, as the amount has been deposited by the Insurance Company, in fact there was no requirement to produce the compensation certificate.

Submissions have been made that the order was passed on 11.7.2011 by the Dy. Registrar (Judicial) noticing the dismissal of the case when no one was present for the appellant. Submissions have also been made that despite the appellant making efforts to find out the status of the appeal, he was repeatedly told that the matter was pending in due course and factually the same stood dismissed.

Submissions have been made that the appellant cannot be punished for mistake / inadvertence on part of the counsel and, therefore, the delay be condoned and the appeal be restored.

Learned counsel for the Insurance Company made submissions that looking to the huge delay in filing the restoration application and as no cogent reason has been indicated in the application, the same deserves to be dismissed.

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

A perusal of the record of the appeal indicates that the same was filed on 29.9.2009 and the office has pointed out defect regarding non-filing of compensation certificate, however, the defect was not removed and the submissions as now being made, were also not made. By order dated 16.5.2011, a peremptory order was passed by the Court, which was also not complied with and on 11.7.2011, the Dy. Registrar (Judicial) noticed the non-compliance and dismissed the appeal.

From what transpires from the record, it is apparent that learned counsel was required to make an application seeking exemption from filing of compensation certificate, in the circumstances as noticed, however, the counsel failed to do so and, thereafter, apparently the appellant also was not informed about the status of the appeal, which led to the delay in filing the restoration application. In view thereof, as submitted, the appellant cannot be punished for the inadvertence of the counsel.

Consequently, the application under Section 5 of the Limitation Act is allowed. The delay in filing the restoration application is condoned.

Heard on restoration application.

For the reasons indicated in the restoration application, supported by affidavit, the same is allowed. S.B. Civil Misc. Appeal No.4905/2011 is restored to its original number.

Learned counsel for the appellant may move an appropriate application in the appeal seeking exemption from filing compensation certificate within a period of ten days.