HIGH COURT of JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Restoration No. 2/2019

1. State of Rajasthan, through Secretary to the Government (Health), Medical & Health Department, Government of Rajasthan, Jaipur.

2. Director, Medical & Health Services, Government of Rajasthan, Jaipur.

3. Additional Director, Medical & Health Services, Government of Rajasthan, Jaipur.

4. Joint Director, Medical & Health Services, Jodhpur Jone, Jodhpur.

5. Chief Medical & Health officer, Jodhpur

6. Dy. Chief Medical & Health officer (Family Welfare), Jodhpur.

7. Additional Director, State Insurance & Provident Fund Department, Rural, Jodhpur.

8. Assistant Director, State Insurance & Provident Fund Department, Rural, Jodhpur.

9. Senior Medical officer, Incharge, Block Primary Health Centre, Peelwa, Head Quarter Rural Family Welfare Centre, Lohawat, Tehsil Phalodi, District Jodhpur.

10. District Collector, Jodhpur.

----Petitioners Versus Bhanwar Lal Nagwal S/o Late Shri Ramnath, C/o Shri Mana Ram Tailor, Meghwal Colony, near Bheemdal Akhara, outside Nagori Gate, Kaga Road, Jodhpur (UDC, Rural Family Welfare Centre, Lohawat, Tehsil Phalodi, District Jodhpur)

----Respondent For Petitioner(s) : Mr. Manish Vyas, AAG with Mr. Vivek Sharma.

HON'BLE MR. JUSTICE P.K. LOHRA

Order

11/02/2019 Applicant-appellants, State of Rajasthan and its other officers, have laid this application under Order 41 Rule 19 read with Section 151 CPC for seeking restoration of accompanying Civil First Appeal No.25/2006. The appeal was dismissed in default and for want of prosecution on 29^th of March, 2016. As the restoration application is filed after delay of 949 days, on behalf of applicants, an application under Section 5 of the Limitation Act is also filed for seeking condonation of delay. The restoration application as well as application under Section 5 of the Limitation Act is supported by affidavit of the officer-incharge of the case.

2. Upon perusal of order dated 29^th of March, 2016, it is abundantly clear that there was no representation on behalf of applicant-appellants for more than four years and the appeal was deferred from time to time. From the order-sheets of the accompanying first appeal, it is also borne out that since 20^th of October, 2011 uptil dismissal of the appeal, in default and for want of prosecution, nobody had appeared on behalf of the appellants. The reasons spelt out in the application by the applicants for restoration are also far from satisfactory. Well it is true that Rule 19 of Order 41 CPC envisage readmission of appeal dismissed for default but then an incumbent seeking readmission of appeal is required to furnish sufficient cause which prevented him from appearing when the appeal was called on for hearing.

3. Be that as it may, a total carelessness or negligence, or omission, or continuous omission by the counsel/litigant without any bona fide reason, cannot be construed as proof for non- appearance much less sufficient proof within the meaning of Rule 19 of Order 41 CPC. The restoration application is absolutely silent about continuous absence of the Government Counsel for more than four years and therefore sans sufficient cause no case is made out for restoration of appeal. It is also noteworthy that instant appeal is filed by the State and its officers and the cause of State is espoused by its law officer Addl. Advocate General but despite that for more than four years no endeavour was made on behalf of the applicant-appellants to appear before the Court when the appeal was called on for hearing.

4. There is yet another aspect of the matter that restoration application itself is filed after inordinate delay of 949 days and the application under Section 5 of the Limitation Act is conspicuously silent about cause of delay. The reasons for delay of 949 days, as mentioned in the application, are per se far from satisfactory and not inspiring confidence. The certified copy, which is filed with the application for restoration, was applied by the counsel on