Lrs Of Hari Ram vs Kojki And Others

Rekha Borana, J

As per office report dated 04.11.2023, service on respondent No.5 is complete. It seems that the said report of the respondent having denied to accept the notice has inadvertently been read as “respondent No.5 having died”.

In view of the same, no steps are required to be taken qua respondent No.5.

The service is hence complete.

The present restoration application has been preferred aggrieved of the order dated 19.11.2012 passed by the Deputy Registrar (Judicial) whereby appeal of the appellant was dismissed in compliance of the peremptory order dated 05.10.2012 as passed by the Court.

The restoration application is reported to be barred by 2119 days.

An application under Section 5 of the Limitation Act has been filed for condonation of the said delay.

A reply to the said application has been filed on behalf of the respondent Insurance Company.

Learned counsel for the respondent submitted that even if the averment of the appellant that he came to know about the dismissal of the appeal only after the notices/summons of the execution proceedings having been served, is believed to be true, there is no reason as to why the present restoration application has been preferred after a period of almost three years from the said information.

Responding to the said objection, learned counsel for the appellants submitted that it was only due to the inadvertence of the counsel representing the appellants at that point of time that the notices could not be filed and the factum of the dismissal of the appeal was not informed to the appellant.

Heard the counsels and perused the record.

A perusal of the order dated 05.10.2012 passed in the appeal makes it clear that a common order was passed in number of appeals and it is quite natural that the counsel might be unaware of the said common order been passed. As submitted in the application, the counsel was unaware of the order dated 05.10.2012 and hence, requisite PF & notices for respondent No.5 could not be filed within the stipulated period.

It is also clear on record that in the appeal, all the respondents except respondent No.5 were served. Respondent No.5 was the driver and hence, his non-service was also not of much consequence.

In view of above facts and in view of the fact that all the contesting parties were served in the appeal and the appeal was barred by only one day, this Court deems it proper to condone the delay in filing the present restoration application.

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

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

The application preferred for early listing is also disposed of.

List the appeal on 20.02.2024.