Condonation of delay in filing restoration application due to counsel's mistake

JUDGMENT

1. The matter comes upon an application filed by the appellant under Section 5 of the Limitation Act seeking condonation of delay in filing restoration application for restoration of D.B. Civil Misc. Appeal No.592/2021.

2. The appeal was dismissed for want of prosecution on account of the fact that when the matter was listed before the Court on 08.11.2021, 17.11.2021 & 25.11.2021, none appeared for the appellant and the Court, noticing the fact that none was present for the appellant on 25.11.2021 as well, dismissed the appeal for non-prosecution.

The office has reported that the application seeking restoration is barred by 65 days.

3. An application under Section 5 of the Limitation Act has been filed inter-alia indicating that counsel for the appellant could not appear before the Court, as he tried to join the hearing through video conferencing but failed to connect and purportedly on account of reasons beyond the control of the counsel, the matter remained unattended on three occasions and as such, the delay in filing the restoration application deserves to be condoned.

4. Learned counsel for the respondent vehemently contested the applications.

5. Submissions have been made that the conduct of the appellant is writ large on record, wherein, on three occasions i.e. 08.11.2021, 17.11.2021 & 25.11.2021 his counsel was not present, resulting in the dismissal of the appeal for non-prosecution and that a spacious plea has been taken that the counsel attempted to join through video conferencing, however, could not connect and, therefore, the application deserves dismissal.

6. Having considered the submissions made by counsel for the parties, it is apparent that for non-appearance of the counsel on three occasions, the appeal was dismissed for non-prosecution. However, apparently for the mistake of the counsel in not appearing on three occasions on the purported ground of failing to connect through video conferencing on all the three occasions, which plea though appears to be spacious, the appellant cannot be made to suffer on the said count.

7. In view of the above, the delay in filing the restoration application deserves to be condoned and is, therefore, condoned.

8. For the reasons indicated in the restoration application supported by affidavit, the same is allowed. The D.B. Civil Misc. Appeal No.392/2021 is restored to its original number.

9. Learned counsel for the respondent pleads urgency in the matter.

10. List the appeal for admission on 13.02.2023.

11. Office is directed to requisition the record of the Family Court before the next date.