MCC No.1130/2011
Devi Lal Batham Smt. Usha & Jaya & Anr.
14.09.2011.
Shri Manish Jain, Counsel for the applicant.
This M.M.C is filed for restoration of FA No.271/2008
which was dismissed because of non-compliance of peremptory
order dated 2.7.2008. This Court directed in FA No.271/2008
thus:
"I.A.No.6731/2008, this is an application under
Section 5 of Limitation Act for condonation of delay.
Let notice of this IA be issued to the respondents.
Requisite by registered post with acknowledgement
due be filed within 10 days, failing which the appeal
shall stand dismissed without further reference to the
Bench.”
It appears that the aforesaid order was not complied with within
ten days. So the appeal was dismissed. It will be pertinent to mention
here that the first appeal preferred by the appellant was also barred by
limitation. Thereafter this application has been filed after a period of
1076 days beyond the period of limitation. In the application, the
applicant has stated that the previous counsel had not communicated
regarding peremptory order dated 2.7.2008 and the applicant was
confident that his appeal is pending. Thereafter on 14.7.2011 when the
applicant came to Jabalpur, then he got information about the
dismissal of the appeal.
From the perusal of the aforesaid facts, it is apparent that for 3
years, the applicant had not cared in respect of his appeal and has
filed the present application for restoration after about three years.
There is no satisfactory explanation in the application under Section 5
of the Limitation Act.The applicant ought to have remained vigilant or
to have enquired in respect of progress of the appeal within a
reasonable period but nonenquiring for these years cannot be said to
be a resonable period.
MCC No.1130/2011
Devi Lal Batham Smt. Usha & Jaya & Anr.
In these circumstances, we do not find any reason even to
issue notice on I.A.No.9358/2011 under Section 5 of the Limitation
Act. The application is rejected. In consequence of it, MCC
No.1130/2011 is also dismissed with no order as to costs.
(Krishn Kumar Lahoti) (Smt. Vimla Jain)
Judge Judge
JLL
