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Mayank Lal Goswami vs District Judge and Others

Allahabad High Court · Decided on 22 April 2011 · Citation: (2011) 04 AHC CK 0156

HON’BLE JUDGES
Sibghat Ullah Khan, J
RESULT
Allowed
CASE NUMBER
Writ C No. 29135 of 2001
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Judgment

6 paragraphs · 343 words

Sibghat Ullah Khan, J.—List revised. No one has appeared for the contesting Respondents.

2.

Heard learned Counsel for the Petitioner.

3.

Petitioner instituted Original Suit No. 362 of 1987 against the Respondent Nos. 2 to 5 for cancellation of a sale deed which was dismissed on merit on 23.03.1998. Against the said judgment and decree Petitioner filed Civil Appeal No. 174 of 1998. The appeal was dismissed for want of prosecution on 18.01.1999. Earlier several orders had been passed directing the Appellant to take steps to serve Respondents. However, the steps were not taken. Restoration application (Misc. Case No. 226 of 1999) was filed on 06.04.1999 which was dismissed in default. However, the said application was restored subsequently. The restoration application was dismissed as barred by time on 30.03.2001 by District Judge, Varanasi which order has been challenged through this writ petition.

4.

Delay in filing restoration application was about two and half months. The only reason given by the Lower Appellate Court is that it appears that Appellant was not interested in pursuing the matter. It has also been noted in the impugned order that earlier also several times orders were passed, directing the Appellant to take steps but steps were not taken. The Appellate Court was required to consider the absence on the crucial date i.e. 30.03.2001 and not earlier lapses. Appellate Court also did not say as to why delay could not be condoned.

5.

However, the fact is that Petitioner was not as vigilant as a prudent litigant ought to be.

6.

Accordingly writ petition is allowed. Impugned order is set aside and restoration application filed on 06.04.1999 is allowed after condoning the delay in filing the same on payment of Rs. 5,000/- as costs which shall be deposited before the Lower Appellate Court on 05.07.2011 along with certified copy of this judgment and requisite steps to serve Respondents in appeal failing which this writ petition shall be deemed to have been dismissed. As soon as the Respondents appear in the appeal deposited costs should be paid to them.