ORDER

The present petition has been filed for restoration of Second Appeal No.195/2011, which was dismissed for want of prosecution vide order 08.03.2016. The restoration petition has been filed belatedly six years thereafter in the year 2022. The petition does not merely disclose a delay under the limitation act but reveals latches.

2. Learned counsel for the petitioner has taken this Court through the application filed U/s.5 of the Limitation Act wherein, it is disclosed that the appellant is a rustic villager and that he had all the confidence in the counsel engaged by him and that the counsel would dutifully pursue the appeal. It is further stated that the previous counsel was stricken by old age and was perhaps not regularly attending the Courts and on account of ex-parté order passed on April, 2021 by Tahsildar Ishanagar, with regard to the mutation of the suit property, the appellant came to know that something had happened and thereafter, he contacted his advocate from whom, he came to know about the dismissal of the appeal in the year 2016.

3. Learned counsel for the petitioner has submitted that the petitioner should not suffer for the carelessness of the counsel. The Court derides such submission of laying the case entirely on the doorstep of the Counsel. Case after cases where there are latches and inordinate delay in filing the petition for restoration, it is most convenient for the subsequent counsel to lay the blame entirely on the previous counsel. Counsels are burdened with several cases and because the litigant has entrusted his case to a particular lawyer does not mean that the litigant has no further duty of periodically following up with the case with his counsel.

4. Learned counsel for the petitioner has produced an order of this Court passed in M.C.C. No.263/2021 (Satpal Singh Vs. Ram Prasad Agrawal) decided on 02.12.2021, where the delay in filing the restoration petition was of 3822 days (which is more than the delay in the present case), was condoned after imposing a cost of Rs.5000/- and the Second Appeal was restored. Thereafter, the learned counsel for the petitioner has placed reliance upon a judgment of the Supreme Court reported in (2001) 6 SCC 176 (M.K. Prasad Vs. Arumugam), wherein, the Supreme Court observed that the order passed by the learned trial Court on 17.09.1993 was ex-parté due to the absence of the counsel for the appellant. The Appellant was unaware of the passing of the decree against him and therefore did not he could not take any steps to file an appeal for setting aside the decree and came to know about the decree in 1997 when he received the notice for execution proceeding initiated by the respondent. Thus, in that case, there was a delay of four years in agitating the right before the appellate Court. The application for setting aside the ex-parté decree along with the application for condonation of delay was rejected by the trial Court on account of delay of 554 days. In para 10 of the said order, the Supreme Court has held that even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. The Supreme Court opined that the appellant should have been more vigilant but his failure to adopt such extra vigilance should not have been a ground for ousting him from the litigation with respect to the property, concededly to be valuable. Thereafter, the appeal was allowed by the Supreme Court by setting aside the impugned orders passed by the trial Court and the appellate Court after imposing an exemplary cost of Rs.50,000/- to be paid to the opposite party.

5. The third judgment which has been referred to and relied upon by the learned counsel for the petitioner is (1981) 2 SCC 788 (Rafiq and another Vs. Munshilal and Another). That was a Civil Appeal that was decided by the Supreme Court in the year 1981. Learned counsel for the petitioner has read out extensively from pa