ORDER
Vikramajit Sen, J.
1. By this Order I shall dispose off an application filed by the Petitioner under Order XLI Rule 19 read with Section 151 of C.P.C. The Civil Revision was dismissed for non-prosecution on 7.9.2000, since there was no appearance on behalf of Petitioner. It is averred that “the non-appearance on behalf of the Petitioner is un-intentional and bona fide as the Counsel for the Petitioner could not check the Cause List of 7.9.2000 of the ‘Regular Matters’.” This application has been supported by the affidavit of the Applicant in which he had deposed as follows:
“1. That I am the petitioner in the above noted case, conversant with the facts of the case, am competent and authorized to swear this affidavit.
2. That the contents of the accompanying application under Order XLI Rule 19 read with Section 151 CPC for recalling the order dated 7.9.2000 has been drafted under my instruction and the same are true and correct to my knowledge and I stated that the same may be read as part and parcel of this affidavit to avoid repetition.”
2. Since the reason given fort he non-appearance on the crucial date is relatable to the Counsel for the Petitioner, it cannot be appreciated that his affidavit has not been filed, and instead the application has been drafted on the instructions of the Petitioner. In my view, by itself this is sufficient reason for dismissing the application. In Gobind Parshad Jagdish Parshad v. Hari Shankar & Others, 2001 II AD (DELHI) 528, in circumstances demonstrating comparatively better diligence I had not considered it appropriate to set aside the dismissal. The reasons apply a fortiori to the present case.
3. Moreover, despite being put to caution by the Respondent that the application is also barred by limitation, no action explaining the apparent delay has been given, and no prayer for condoning the delay has been preferred. On a reading of Order XLI Rules 11(2) and 19 it is apparent that an application must be brought within thirty days in accordance with Entry 122 of Schedule to the Limitation Act. Order XLI Rules 11(2) and 19 CPC and Entry 122 of Schedule to the Limitation Act are reported below for ease of reference:
O. XLI, Rule 11(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
O. XLI, Rule 19 CPC — Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 or rule 18, the appellant may apply to the Appellate Court for the readmission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
122. Description Period of Time form
of application Limitation which period
begins to
run
---------------- ----------- -------------
To restore a suit or Thirty The date of
appeal or application days dismissal.
for review of
revision dismissed
for default of
appearance or for
want of prosecution
or for failure to pay
costs of service of
process or to furnish
security for costs."
4. The Petitioner ought to have sought the condensation of delay. The application itself discloses that the knowledge of the dismissal was gained when an inspection of the file was carried on 17.11.2000. However, the application has been filed after nine days, a significant period considering the factum of the dismissal of the Appeal. The following extract from Gobind Parshad’s case (supra) is contextual:
“The conduct of the Respondent and the Advocate is cavalier, lackadaisical and negligent; not once has any person bothered to appear in the case. Respondent No. 4 was served through publication. The next date had being shown as ‘actual’ in the newspaper but still there was no appearance on his behalf. The applications have not been supported by the affidavits of the Advocate whose vakalatnama was on the file. This was essential since it is only this person who could have deposed that the Appeal could not be traced/noticed because of the failure to mention his name in the Regular Cause List. The affidavit of Respondent No. 1 is of no advantage since he was either unaware of these facts, or if aware, had knowledge of the listing and hence can scarcely fasten the blame on his Advocate alone. It must also be kept in mind that the Appeal was actually taken up for hearing on 24.8.2000, but adjourned, quite obviously in the interest of justice, because of the absence of the Respondents. Courts cannot be impervious to the plight of the litigant who has already spent time, effort and money over a period spanning three decades. It would be a travesty of the legal system if a rehearing is allowed to a party who has manifested an intentional default in appearance and exhibited negligence, if not malafides. The Court ought not to set aside a judgment unless strong grounds, clearly establishing sufficient cause for the non-appearance of a diligence party are disclosed. No such case has been made out and on these submissions alone I would dismiss all the applications, with costs.”
5. The conclusion is that the application is not maintainable since it is barred by limitation. However, since I have already considered it on merits, I find and held that it is also dismissed on merits, with costs of Rs. 2000/-.