Jai Prakash v. Shiv Steel & Anr

1. The present appeal belatedly assails an order dated 22.08.017, whereby, a learned Single Judge ofthis Court had dismissed applications filed on behalf of the appellant (petitioner therein), being CM NO. 1462/2015, for restoration ofthe Writ Petition No. 7760/2012 titled as Raj Kumar vs. Shiv Steel & Another (hereinafter referred to as the 'subject petition'), which came to be dismissed in default on 28.11.2013; and CM LPA 759/2017 j 2017:DHC:9076-DB No. 1463/2015, seeking condonation of387 days delay in filing the said restoration application.

2. The procedural facts as are necessary for the determination of the matter are as follows a) The subject petition was listed for hearing before a learned Single Judge ofthis Court on 08.10.2013, on which date the following order was passed:- "Counselfor thepetitioner is statedto be sufferingfrom Dengue. At request, reriptify on 28"" November, 2013. " A perusal of tl^e abpye order reveals that a proxy counsel for the appellant sought ap adjournment on the specific ground that the counsel for tjigJatter was suffering from Dengue; and pursuant thereto, the hea|m| was adjourned to 28.11.2013. b) On 28.11.2013 i^e.The;next date of hearing, the subject petition was dismissed in default with the following observation:- Matter has already been passed over once. Even on second call no one appearsfor the petitioner. Dismissed in default. " c) Thereafter, the appellant filed the said CM No. 1462/2015, seeking restoration of the subject petition, along with the said application under section 5ofthe Limitation Act, 1963, being CM NO. 1463/2015, seeking condonation of387 days delay in filing the former restoration application. LPA 759/2017 Page 2 d) By way of the impugned order, both the said applications i.e. Cm No. 1463/2015 and CM No. 1462/2015, seeking condonation of delay as well as restoration ofthe subject petition, respectively, were declined, while observing as follows:- On a consideration ofthe rival submissions made on behalf ofthe either side andalso on the verdict ofthis Court titled as Virender Kumar vs. Maya Devi 94 (2001) DLT 848 it is apparent that there was appearance ofthe proxy counsel on behalfofthe petitioner on 08.10.2013 and that the petitioner was not indicted to be present himself as per proceedings dated 08:10:2013 and thus submissions made by thepetitioner through CM PPL. 1462/2015 submitting to the effect that it was the petitipher who himselfy\:as mis-communicated and misheard the ddte ofthe hearing cannot be accepted. Furthermore, m reason has beenputforth by thepetitioner to explamalspjpsfpfvhy he chose not to 28.11.2013 andalso till • the date hfMJmHf e) In doing so, the learned Single Judge while placing reliance on the decision,ofthis' Court in Virender Kumar vy. Mava Devi repnrtprl as (2001) 94 DLT 848, by way of impugned order dated 22.08.2017, came to a conclusion that since no sufficient ground had been put forth on behalfofthe appellant to explain his absence before the Court on 28.11.2013; much less the gross delay in filing the application seeking restoration of the subject petition, it would be atravesty of justice to entertain such belated restoration applications. Aggrieved by the impugned order dated 22.08.2017, the appellant has preferred the present appeal. As aforenoted, the appeal itself has been Page 3 u instituted belatedly and is accompanied by an application, being CM NO. 43669/2017, seeking condonation of delay of 22 days.

4. Aperusal ofthe said application reflects that itis averred on behalfof the appellant that he had filed a petition seeking review ofthe impugned order dated 22.08.2017, but took the same back from the Registry "due to intervention under scrutiny thatthe remedy isavailable under Letters Patent Act"; which has occasioned the delay infiling the present appeal.

5. It is relevant to observe that no material in support of what has been ^ averred in the precedingparagraph has been placed on record.

6. Even other>\4se, Sefes no explanation forthcoming from the appellant as to wheh,hhei^;^Was an appearance made by proxy counsel on behalfofthe appellant on 08.10.2013, how was itincorrectly recorded by the latter that the cas^lyas kept in Riile and, consequently, no representation was made on behalf ofthe'appellant before the learned Single Judge on the next date ofhearing he., 2841.2013,when the writ petition came to be dismissed. The extract ofthe Diary ofthe concerned Advocate appearing on behalf of the appellant on 08.10.2013, which is de rigueur in this behalf, has neither been placed before the learned Single Judge nor has it been produced before this Courtto buttressthe assertion made on behalf ofthe appellant.

7. In view of the foregoing and the dictum of the Hon'ble Supreme Court in the case of Pund/ik Jalam Patil vs. Executive Ensineer, Jalsaon Medium Project and Another reported as (2008) 17 SCC 448, it is axiomatic to state that equity aids the vigilant and not those who slumber over their rights. •n LPA 759/2017 Page 4

8. Therefore, the applieation seeking condonation of delay in filing the accompanying appeal, as well as the appeal itself are devoid of any merit and are consequently dismissed. No order as to costs.

DECEMBER 06,2017 SS '•yi V- SID^ARTH MRIDUL (JUDGE) \rx b DEEPA SHARMA (JUDGE) Page 5