Decided on October 06,1999

JAndK T D C Through Its Secretary Appellant
Enn Bee Store Respondents


- (1.) THROUGH the medium of this application condonation of delay in filing the application for re -admission of appeal is prayed. The appeal (CIA No. 100/89) was dismissed on August 20,1998 when Mr. Z.A. Shah, counsel for the applicant had stated in the court that he had no instructions from his client. On this statement being made by the counsel, the appeal was dismissed for non -prosecution. This application was filed on Nov: 20,1998 stating therein that the applicant came to know about the passing of the dismissal order on Nov: 12,1998 when notice in the execution proceedings was received. After the receipt of the notice no time was spent in filing the application. In the objections it is pleaded that the applicant was not diligent in pursuing the appeal in time and at that time the court was generous in condoning the delay and allowing the time barred appeal to be filed. Later on, the applicant was careless in perusing the appeal which was dismissed for non -prosecution on 20.8.1998 because the counsel had no instructions. The applicant was duty bound to be vigilant for each and every date of hearing and the present application was filed after four months and there is no sufficient cause to condone the delay.
(2.) HEARD the arguments.
(3.) THE counsel for the applicant had stated that when the counsel for the applicant (Mr. Z. A Shah) stated that he had no instruction from his client, the court ought to have given a notice to the applicant but on the same day the appeal was dismissed. This circumstance is sufficient to condone the delay and in support of this contention the learned counsel has cited AIR 1998 SC 258 and 1993 Supple (III) SCC 256. The counsel has further stated that the restoration application was filed after two months from the expiry of period of limitation and not four months as is alleged in the objections. In AIR 1998 SC 256, the defendants therein had engaged counsel to defend suit filed against them. Suit proceeded ex -parte and ex -parte decree passed on counsel reporting no instructions. Neither counsel reported this fact to defendants nor court issued notice to them. The defendants got knowledge of ex -parte decree only when they approached the counsel. Defendants filed the application to set aside the decree within four days of the knowledge. In these circumstances defendants were found not careless or negligent and ex -parte decree was held liable to be set aside. In 1993 Supple (III) SCC 256 the case was fixed on March 15,1974 and the counsel of the petitioners who was present withdrew from the case. There was no record to show that petitioners had the notice of the hearing of the case on that day. The apex court held that in the interest of justice fresh notice for actual date of hearing should have been sent to the parties. The apex court deprecated the decreasing trend of service element and increasing trend of commercialisation in the legal profession. Adverting to the facts of the present case, it is found that the applicant herein had no knowledge of the date of hearing fixed in the case and there is no record to show that counsel had informed them. Applying the tests laid down in the above stated two cases of the apex court to the facts of the present case, the delay of two months in filing the appeal is condoned. Accordingly CMP No. 816/98 is accepted and with its acceptance CMP No. 237/98 stands disposed of with the - condonation of delay and Appeal (CIA No. 100/89) stands readmitted. The office is directed to list the appeal for hearing oh an appropriate date.;

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