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TMI Blog2006 (2) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... t it may be kept at 2.15 p.m. yesterday. At 2.15 p.m. it was mentioned that it is not convenient for Mr. Oza, learned advocate to attend the matter as he was busy in some other Court. The matter is kept today with the specific understanding that it will be proceeded with. Today, when the matter is called out, learned advocate is not present. Hence dismissed for default. Rule is discharged." From the facts recorded in Order, it is clear that non-appearance of the learned advocate was not an inadvertent lapse on the part of the learned advocate. The learned advocate had three opportunities to appear before the Court. The matter was listed on 11-4-2001. In the morning a request was made to keep it at 2.15. The request was granted. The matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for default by the Honourable Court (Coram : Ravi R. Tripathi, J.) on 12-4-2001. " Paragraph No. 8 of the application reads as under : "The applicant states that the aforesaid order dismissing the Company Petition for default was not sent to the applicant nor was it communicated to the applicant by the learned advocate at any point of time." What follows is again important : "The applicant further states that, it was being informed to the applicant, as and when the status regarding the matter was being sought from the office of the learned advocate, that the intimation would be given about the outcome of the matter . . . ." In the same paragraph, it is stated by the applicant that : ". . .However, even for a considerably long t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was also not pursued with required sincerity. It will not be out of place to refer to the proceedings of Company Petition No. 91 of 1999. It was filed on 1-4-1999 and was moved for urgent orders only on 8-7-1999 by filing an urgent note. The first order obtained on 9-7-1999 was adjournment to 16-7-1999. On 16-7-1999, it was got adjourned to 19-7-1999. On 19-7-1999, the Court issued notice returnable on 23-8-1999. Thereafter on 21-9-1999, this Court (Coram : S.D. Dave, J.) passed the following order : "This petition came to be admitted in the first session today, that is on 21-9-1999. The orders would go to show that, it has been said therein that there was a say coming from Ld. Counsel Mr. K.V. Shelat on an earlier occasion that he wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only a misdemeanour or inaction on the part of the counsel, but it is also misdemeanour and inaction on the part of the party concerned. After the matter was dismissed on 12-4-2001, the party remained satisfied with the reply given by the office of the learned advocate about the status of the matter till 2005. Very conveniently, it is stated that it was in 2005 that the advocates office informed him to inquire about the status of the matter from the computer section and, therefore, the party inquired from the computer section on 30-12-2005 and on having learnt about the dismissal of the matter for non-prosecution, the party filed the restoration application along with an application for condonation of delay only on 6-2-2006. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with an application for condonation of delay was filed only on 6-2-2006, which cannot be said to be a prompt action on the part of the party. The Hon ble Apex Court has observed as under : "It appears that soon thereafter within a span of about 10 days an application was moved on behalf of the petitioner pointing out to the Court the circumstances in which neither the petitioner nor his three learned counsel were present and sought the indulgence of the Court to recall the order dated 21-4-1983 on the ground that 21-4-1983, happened to be a day on which the Court re-opened after Bihu holidays and that the learned Senior Counsel who had gone to Calcutta during the vacation had not been able to return on account of irregularity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by defendants within 4 days of knowledge defendants cannot be said to be careless/negligent. On the face of it the facts of the case are different than the facts of the case on hand. Even at the cost of repetition it is required to be stated that in the present case, even after obtaining the knowledge of the matter being dismissed for default on 30-12-2005, the restoration application along with an application for condonation of delay was filed on 6-2-2006. Therefore, the decision of the Hon ble Apex Court does not help the applicant and no relief as sought for can be granted. 8. The learned advocate next relied upon a decision of the Hon ble Apex Court in the matter of Prakash Seshmal Jain v. Sukhmal Sons AIR 1999 SC 2630. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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