The court refused to restore a dismissed application due to an unexplained delay of 162 days, the presence of misstatements in the application, and the apparent tactic of filing after a roster change to avoid the original bench.

ORAL ORDER

1. Heard Ms. Tejal K. Shah, learned Advocate for the applicant, and Ms. Disha N. Nanavaty, learned Advocate for the opponent.

2. The draft amendment is allowed, to be carried out forthwith.

3. The present application is filed seeking the restoration of Special Civil Application No. 6481 of 2016, which was dismissed for non-prosecution on 20.06.2025, wherein, the following has been observed:

“1. Today, the priority was sought by the respondent in the matter.

2. When the matter was called out, none was present for the petitioner and learned advocates Ms.Disha N. Nanavati appearing for the respondent is present. This matter is of the year 2016, listed final hearing in old matters.

3. After going through the matter, prima facie, it appears that the present application is filed against the concurrent finding of the Appellate Court as well as the Small Causes Court to the effect that there was an arbitration agreement between the parties, whereby as per Section 8 of the Arbitration and Conciliation Act, 1996, the matter is required to be decided by an arbitrator. The order sheet suggests that due to the stay granted by this Court, no progress has been made so far in the matter.

4. In the absence of the learned advocate for the petitioner, it would not be appropriate for this Court to hear and decide the matter ex parte. So, there is no option left but to dismiss the matter for non-prosecution.

5. Thus, the matter is dismissed for default for non-prosecution. Interim relief granted earlier stands vacated forthwith. No order as to costs.”

4. There is a delay of around 162 days in filing the restoration application. As such, no sufficient cause is made out by the applicant seeking condonation of delay of 162 days in filing the restoration application, except the fact narrated that earlier in point of time, the applicant had filed one restoration application being F/MCA/22975 of 2025, but the same was dismissed as the applicant did not remove the office objection. It appears that there was no liberty reserved for filing a fresh restoration application, but such wrong statement has been made by the applicant in paragraph No. 3 of the application.

5. Ms. Shah, learned Advocate for the applicant, would request this Court that considering the facts and circumstances, and as there was no mala fide intention on the part of the applicant to not file the restoration application in time, this Court may take lenient view with reasonable cost and the prayers made in this application may be allowed.

6. Per contra, Ms. Nanavaty, learned Advocate for the opponent, would vehemently oppose this application contending inter alia that despite granting a reasonable opportunity to the applicant- original petitioner, he did not attend the proceedings seriously, which ultimately resulted into its dismissal. It is submitted that in the cognate writ petition being SCA No. 6482 of 2016 filed by other similarly situated petitioner against the opponent herein came to be dismissed by this Court on 19.09.2025. It is further submitted that no sufficient cause is made out by the applicant in filing the application and the delay in filing the restoration application is nothing but direct tactic on the part of the applicant, which may not be entertained by this Court.

7. Having heard the learned Advocates appearing for the respective parties and upon perusal of the application, it appears that a wrong statement has been made by the applicant in paragraph No. 3 of this application that in the earlier restoratio