1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL APPLICATION NO.1683 OF 2009

IN

FIRST APPEAL NO.614 OF 2007

The Regional Director,

…………

Applicant

E.S.I.C., Colaba, Mumbai

Vs.

M/s Mercantile & Industrial

…………

Respondents

Development Co., Sion,Mumbai

Mr. Rajan Jaykar, Advocate for Applicant.

Mr. Ravindra Parekh, i/by Parekh & Co. Advocate for respondents.

CORAM : Smt. R.P. SondurBaldota, J.

Date : 8^th May, 2009

P.C. :

1.

This application is taken out by the applicant for restoration

of the appeal which was dismissed pursuant to the order dated 28^th

February 2007 after condoning the delay in filing the application.

The applicant also seeks leave to file private paper book as per

the order dated 28^th February 2007. The application is opposed by

the respondents contending that the same is not maintainable and it

is barred by the Law of Limitation, there being no sufficient

explanation to condone the delay.

2.

The Second Appeal in which the present Civil Application is

taken out was admitted on 28^th February 2007. At the time of

admission, the appellant was directed to file private paper book

along with decree form within a period of one year from that day.

It was however, ordered that if the compliance as regards the

filing of the paper book is not made within the stipulated time,

2

the appeal to stand dismissed for want of prosecution, without

further reference to the Court. The applicant was unable to file

the paper book within the stipulated time, therefore, the appeal

came to be dismissed.

3.

Mr. Parekh, the learned counsel for respondents submits that

there is no provision in the Code of Civil Procedure for filing the

application for restoration of the appeal which is dismissed in the

above manner. Once the appeal is dismissed, the Court becomes

functus officio and the only remedy to the appellant is to

challenge the order in appeal and not by filing the application to

the same Court. The other ground of objection raised by Mr.Parekh

is that it was open for the appellant to file an application for

extension of time to file private paper book. As remedy under

Section 148 Code of Civil Procedure was not resorted to by the

appellant the Court should not come to the rescue of an indolent

appellant. It is next submitted by Mr. Parekh that there is

substantial delay in filing of the present application which has

not been explained by the applicant.

4.

Mr.Jaykar, the learned counsel for the applicant submits that

the Court must take note of the peculiar circumstances in which

appeal came to be dismissed i.e. for non filing of private paper

book. He submits that preparation of the paper book has never been

the responsibility of the litigants. If one peruses the High Court

Appellate Side Rules, paper book is required to be prepared by the

office of the Court. Looking to the large pendency of the appeal

proceedings and the stupendous task of preparation of paper book,

the Court has found out a via media of directing parties to file

3

their private paper book, so that preparation of paper book is

expedited. The bar has also risen to the situation and accepted

such directions wherever given. That is how the direction in the

order dated 28^th February 2007 came to be issued by the Court. He

points out that such directions are now routinely issued by the

Court. Therefore, for non compliance of such directions, the

appellant should not be punished with dismissal of the proceedings.

5.

As regards maintenability of the application, Mr.Jaykar has

two arguments. Firstly that though Civil Procedure Code does not

specifically provide of an application of restoration proceedings

dismissed on such ground the same is maintenable under general law.

Relying upon decision of Full Bench of Orissa High Court in

Smt.Bimala Devi and others vs. Patitapaban Dev and others, reported

in AIR 1973 ORISSA 169 he