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-- $-25- HIGH COURT OF DELHI
W.P.(C)4849/2012,CM APPL.1468/2015,CM APPL.1469/2015
RAJESH KHAN Petitioner
Through Mr.G.C.Yadav,Adv.
-- $-25- HIGH COURT OF DELHI
W.P.(C)4849/2012,CM APPL.1468/2015,CM APPL.1469/2015
RAJESH KHAN Petitioner
Through Mr.G.C.Yadav,Adv.
VERSUS
SHIV STEEL AND ANR ..... Respondent
Through Mr.Shekhar Gupta,Adv.for Rl.
None for R2.
. CORAM:
HON'BLE MS.JUSTICE ANU MALHOTRA
22.08.2017 Respondentno.2arrayed on record is aproforma party.
Vide CM APPL.1468/2015 filed bythe applicant/the petitioner u/s9
Rule4&9r.w.s 151 CPC supported with an affidavit ofthe applicant/the petitioner, the applicant / the petitioner seeks restoration of the petition dismissed in default on 28.11.2013 submitting to the effect that the petitioner had appeared before the Court on the date 08.10.2013 but
- misheard the date ofthe hearing and was underthe impression thatthe case waskeptin Ruleand thus could notappear on 28.11.2013 whenthe petition had been dismissed. It has been further submitted through the application that the petitioner approached the ^ourt regarding the status ofthe case on
01.12.2014 and came to know that the same had been dismissed in default on28.11.2013 andsubmittedthathisnon-appearance wasneitherintentional nor deliberate.
Along withthesaid application,is anotherCM APPL.1469/2015
Through Mr.Shekhar Gupta,Adv.for Rl.
None for R2.
. CORAM:
HON'BLE MS.JUSTICE ANU MALHOTRA
22.08.2017 Respondentno.2arrayed on record is aproforma party.
Vide CM APPL.1468/2015 filed bythe applicant/the petitioner u/s9
Rule4&9r.w.s 151 CPC supported with an affidavit ofthe applicant/the petitioner, the applicant / the petitioner seeks restoration of the petition dismissed in default on 28.11.2013 submitting to the effect that the petitioner had appeared before the Court on the date 08.10.2013 but
- misheard the date ofthe hearing and was underthe impression thatthe case waskeptin Ruleand thus could notappear on 28.11.2013 whenthe petition had been dismissed. It has been further submitted through the application that the petitioner approached the ^ourt regarding the status ofthe case on
01.12.2014 and came to know that the same had been dismissed in default on28.11.2013 andsubmittedthathisnon-appearance wasneitherintentional nor deliberate.
Along withthesaid application,is anotherCM APPL.1469/2015
W.P.(C)4849/2012 , page1 of3
2017:DHC:9006 filed on behalf ofthe applicant / the petitioner u/s 5 ofthe Limitation Act r.w.s. 151 CPC seeking condonation ofdelay of387 days in filing the CM
2017:DHC:9006 filed on behalf ofthe applicant / the petitioner u/s 5 ofthe Limitation Act r.w.s. 151 CPC seeking condonation ofdelay of387 days in filing the CM
APPL.1468/2015 seeking restoration ofthe petition dismissed in default on
28.11.2013,submitting to the effectthatthe applicant learnt ofthe dismissal ofthe case only on 01,12.2014 when he enquired about his case.
Through the oral submissions made on behalfofthe respondent no. 1 and the reply submitted on behalfofthe respondent no. 1,the applications have vehemently been opposed placing reliance on the record of the'writ petition submitting to the effect thatthe proceedings dated 08.10.2013 itself categorically indicate that it was the counsel i.e. proxy counsel for the applicant / the"petitioner was present on the.date 08.10.2013 and not the applicant / the petitioner and that the proxy counsel for the petitioner had sought an adjournment on the ground that the counsel for the petitioner was suffering from illness. It is further submitted through the response submitted by the respondent no. 1 that the application is barred by limitation and violates Article 122 of the Schedule of the Limitation Act, 1963 and no sufficient cause whatsoever had been putforth by the petitioner for the delay in seeking the restoration ofthe petition.
Reliance interalia has been placed on behalf ofthe respondent no. 1 on the verdict of this Court,titled as Virender Kumar Vs. Maya Devi 94
\ (2001)DLT848 in support ofthe submissions that the application seeking restoration ofthe petition and seeking condonation ofthe delay in filing the application seeking restoration ofthe petition ought not to be allowed in as much as it would be a legal infirmity ifthe same were allowed and that no sufficient grounds have also been putforth on behalfofthe petitioner to
28.11.2013,submitting to the effectthatthe applicant learnt ofthe dismissal ofthe case only on 01,12.2014 when he enquired about his case.
Through the oral submissions made on behalfofthe respondent no. 1 and the reply submitted on behalfofthe respondent no. 1,the applications have vehemently been opposed placing reliance on the record of the'writ petition submitting to the effect thatthe proceedings dated 08.10.2013 itself categorically indicate that it was the counsel i.e. proxy counsel for the applicant / the"petitioner was present on the.date 08.10.2013 and not the applicant / the petitioner and that the proxy counsel for the petitioner had sought an adjournment on the ground that the counsel for the petitioner was suffering from illness. It is further submitted through the response submitted by the respondent no. 1 that the application is barred by limitation and violates Article 122 of the Schedule of the Limitation Act, 1963 and no sufficient cause whatsoever had been putforth by the petitioner for the delay in seeking the restoration ofthe petition.
Reliance interalia has been placed on behalf ofthe respondent no. 1 on the verdict of this Court,titled as Virender Kumar Vs. Maya Devi 94
\ (2001)DLT848 in support ofthe submissions that the application seeking restoration ofthe petition and seeking condonation ofthe delay in filing the application seeking restoration ofthe petition ought not to be allowed in as much as it would be a legal infirmity ifthe same were allowed and that no sufficient grounds have also been putforth on behalfofthe petitioner to
W.P.(C)4849/2012 page2of3 explain its absence on the date 28.11.2013 much less the gross delay in filingthe application seekingrestoration ofthe petition.
On a consideration of the rival,submissions made on behalf of the either side and also on the verdict ofthis Courttitled as Virenden Kumar Vs.
Maya Devi 94(2001)DLT848 it is apparent that there was appearance of , the proxy counsel on behalf of the petitioner on 08.10.2013 and that the petitioner was notdndicated to be present himself as per proceedings dated
08.10.2013 and thus submissions made by the petitioner through CM APPL.
1468/2015 submitting to the effectthatit wasthe.petitioner who himselfWas mis-communica;ted and misheard the date ofthe hearing cannotbe accepted.
Furthermore,no reason has been ptit forth by the petitioner to explain also asto why he chose notto ascertain the date ofthe hearing afterthe date
28.11.2013 and also till the date 01.12.2014;
In these circumstances, CM APPL. 1469/2015 filed on behalfofthe applicant/the petitioner u/s 5 ofthe Limitation Actr.w.s. 151 CPC seeking condonation of delay of 387 ;days in filing the CM APPL. 1468/2015 seeking restoration of the petition dismissed in default on 28.11.2013, are thus both declined. ^ —
ANU MALHOTRA,J AUGUST 22,2017/rak
On a consideration of the rival,submissions made on behalf of the either side and also on the verdict ofthis Courttitled as Virenden Kumar Vs.
Maya Devi 94(2001)DLT848 it is apparent that there was appearance of , the proxy counsel on behalf of the petitioner on 08.10.2013 and that the petitioner was notdndicated to be present himself as per proceedings dated
08.10.2013 and thus submissions made by the petitioner through CM APPL.
1468/2015 submitting to the effectthatit wasthe.petitioner who himselfWas mis-communica;ted and misheard the date ofthe hearing cannotbe accepted.
Furthermore,no reason has been ptit forth by the petitioner to explain also asto why he chose notto ascertain the date ofthe hearing afterthe date
28.11.2013 and also till the date 01.12.2014;
In these circumstances, CM APPL. 1469/2015 filed on behalfofthe applicant/the petitioner u/s 5 ofthe Limitation Actr.w.s. 151 CPC seeking condonation of delay of 387 ;days in filing the CM APPL. 1468/2015 seeking restoration of the petition dismissed in default on 28.11.2013, are thus both declined. ^ —
ANU MALHOTRA,J AUGUST 22,2017/rak
W.P.(C)4849/2012 page3of3
JUDGMENT