1
MCC No.1308/11
Kashi Bai Smt.Poona Bai
23.11.2011
Ms.Preeti Khanna, Counsel for applicant.
Shri Anurag Tiwari, Counsel for respondent.
I.A.No.10680/11, an application under Section 5 of the
Limitation Act for condonation of delay in filing MCC No.1308/11
Though learned counsel appearing for respondent vehemently
opposed this application by stating that no ground is made out for
condonation of delay, but considering peculiar facts of the case, we find
it a fit case for condonation of delay and accordingly the delay in filing
this MCC is condoned.
Heard the learned counsel on MCC No.1308/11
By this application, the applicant is seeking restoration of First
Appeal No.184/07 which was dismissed in default on 24.10.2007. It is
stated in the application that the applicant engaged Shri Mohan
Tamaskar, Advocate and paid him court-fee apart from legal fee. The
Counsel had not deposited the court-fee and filed the appeal without
payment of court-fee. Thereafter, the matter remained pending before
this Court for removing the default of payment of deficit court-fee.
However, a peremptory order was passed by a Division Bench of this
Court on 3.10.2007 allowing 10 days opportunity to the appellant/
applicant for payment of court-fee and to move an appropriate
application. Neither the court-fee was paid nor an application under
Section 149 of CPC was filed, resulting dismissal of the first appeal on
24.10.2007.
It is stated that the applicant is 75 years old lady and had done
all necessary for filing an appeal, but it was a fault on the part of the
counsel who neither deposited the court-fee inspite of payment to him
nor filed any application seeking extension of time as is required under
Section 149 of CPC. So applicant suffered dismissal of the appeal.
Learned counsel for applicant submitted that so far as court-fee
which was paid to the counsel is concerned, the applicant shall take
2
MCC No.1308/11
Kashi Bai Smt.Poona Bai
23.11.2011
separate steps, but now applicant is ready to make payment of court-
fee in the appeal after its restoration.
Considering peculiar facts of the case, on 19.9.2011, we
directed issuance of the show cause notice to Shri Mohan Tamaskar,
Advocate, as serious allegations were made in paras 6 to 10 of the
application and inspite of service, he has not caused appearance. In
these circumstances, we refer the matter of Shri Mohan Tamaskar,
Advocate to the State Bar Council of M.P. for taking appropriate action
in this regard. A copy of MCC No.1308/11 alongwith affidavit of the
applicant be sent to the Secretary, M.P. State Bar Council, Jabalpur
who shall take action in accordance with law against Shri Mohan
Tamaskar and apprise this Court in respect of the outcome of the
aforesaid action within a period of three months positively.
Considering reasons stated in the application-MCC No.1308/11
which are strange in nature, we find it fit case for restoration of the
appeal. Though Shri Anurag Tiwari, learned Counsel for respondent
opposed the aforesaid prayer, but in the interest of justice, we find that
a case has been made out by the applicant for restoration of the First
Appeal. Accordingly, this application-MCC No.1308/11 is allowed. First
Appeal No.184/2007 dismissed in default on 24.10.2007 is restored to
its number and office is directed to list F.A.No.184/07 for hearing on
30.11.2011.
Considering the fact that both applicant and respondent are real
sister and are running in the age of above 70 years, we find it
appropriate to call both of them to be present before this Court and to
explore any possibility of settlement between the parties and
accordingly, both are directed to remain personally present before this
Court on 30.11.2011.
No order as to costs.
(Krishn Kumar Lahoti) (Tarun Kumar Kaushal)
Judge Judge
3
MCC No.1308/11
Kashi Bai Smt.Poona Bai
23.11.2011
C.
