Smt. Madhu Devi vs Dilip Baraik

Mr. Amitav K. Gupta, J.—This interlocutory application has filed under Section 5 of the Limitation Act for condoning delay of 444 days in filing the instant Miscellaneous Petition.

It is submitted by the learned counsel that second appeal no. 158 of 2012 was preferred on 11.10.2012. That by order dated 11.01.2013, two weeks'' time was granted to the appellant to remove the defects and thereafter a further two weeks'' time was granted but the defect was not removed and the matter was placed before the Bench. That the Hon''ble Court was pleased to grant one week time to remove the defect vide order dated 24.04.2014. It is submitted by the learned counsel that the said peremptory order was passed to remove the defect no.1 and the office had pointed out that there was variance of suit value as mentioned in certified copy of the decree under appeal and suit value as mentioned in para 6 of the judgment of the appellate court and accordingly direction was given that it may be sent to the court below for necessary correction. That the then conducting counsel was not aware of the office note, hence he could not make prayer before the court to send the decree and judgment to the court below for removal of the defects. That due to the bona fide mistake of the then conducting counsel the defect could not be removed within the prescribed period and the second appeal stood dismissed for non-compliance of peremptory order. It is submitted that the petitioner/appellant is an aged lady and she did not have any knowledge about the dismissal of the case neither was she informed by the conducting counsel. That her son was taking steps in the case but due to non-communication of the order, he could not know about the status of the case. Thereafter, a new counsel was engaged and on 17.08.2015, the status report was obtained whereupon she came to know that the matter was disposed off but the date of the disposal was not being shown, where after she applied for certified copy of the order sheet, ( as Annexure-1 & 1/1) where after, she came to know that the appeal had been dismissed on 01.05.2014 for non-compliance of peremptory order dated 24.04.2014.

On the above grounds, it is submitted that there has been no deliberate or intentional laches on the part of the petitioner/appellant rather it was due to bona fide mistake of the counsel that the order could not be complied with. It is further submitted that petitioner/appellant has a good case and if the C.M.P. is not allowed and second appeal is not restored to its original file, he shall suffer irreparable loss.

Learned counsel on behalf of O.P./respondent no.1 has vehemently opposed and submitted that it was the duty of the learned counsel to seek time from the court to bring the corrected decree / judgment as had been pointed out by the Office. He has further submitted that the petitioner cannot be given the luxury of making such prayer as there is no reasonable explanation for the negligence. Hence, the C.M.P. is fit to be rejected as barred by limitation.

Learned counsel on behalf of the State has not raised any serious objection.

Considering the reasons assigned in the supporting affidavit, the delay is, hereby, condoned subject to the payment of cost of Rs.5,000/- out of which Rs.2,500/- shall be paid with the respondent no.1 namely Dilip Baraik and Rs. 2,500/- shall be deposited with the Advocate Welfare Fund by 09.03.2016 failing which the interlocutory application being I.A.no. 4914 of 2015 shall stand rejected.

C.M.P. No. 307 of 2015

On deposit of the aforesaid amount, the C.M.P. no. 307 of 2015 shall stand allowed and Second Appeal no. 158 of 2012 restored to its original file, failing which the Miscellaneous Petition shall stand dismissed without further reference to the Bench.

Learned counsel for the appellant shall remove the defects as pointed out by the Office in second appeal no. 158 of 2012 within three weeks from the date of this order.