MOHD NOOR Vs. UNION OF INDIA AND OTHERS
LAWS(UTN)-2013-5-85
HIGH COURT OF UTTARAKHAND
Decided on May 01,2013

MOHD NOOR Appellant
VERSUS
UNION OF INDIA AND OTHERS Respondents

JUDGEMENT

- (1.) Heard learned counsel for the parties.
(2.) This writ petition was dismissed in default on 11.05.2010. The restoration application has been filed by the petitioner with delay condonation application. There is 984 days delay in filing of restoration application. Reason for delay in filing the restoration application, as stated in the delay condonation application, is that on 11.05.2010, the then counsel for the petitioner Mr. B.D. Pande could not appear before this Court, as the case could not be noted in diary by his clerk. Due to this reason, the then counsel for the petitioner could not know that the case was listed before this Court and due to his non appearance, the writ petition was dismissed in default. It is also mentioned in the delay condonation application that the petitioner as well as his counsel were confident that the case would be listed in due course. The petitioner came to know about the dismissal of the writ petition only when the execution proceedings started in the Court of Shajahanpur. Thereafter, the petitioner came to Nainital and enquired about the status of his case and then only, he came to know that his writ petition was dismissed for non-prosecution on 11.05.2010. Thereafter, he prepared the delay condonation application as well as the restoration application and filed the same. The parawise contents made in the delay condonation application have been sworn in by the petitioner based on his personal knowledge. The delay condonation application as well as the restoration application has not been filed by the counsel, who was engaged earlier and who could not appear in the Court on 11.05.2010. Now, these applications have been filed by the two new advocates.
(3.) I have carefully considered the submission advanced by the learned counsel for the petitioner. I am not satisfied with the reason furnished in the delay condonation application for non-appearance of his counsel on 11.05.2010. Even if it is assumed that the counsel for the petitioner could not appear before the Court on the date fixed, as the case could not be marked in diary by his clerk, the subsequent delay of 984 days has not been explained properly. There is no affidavit of the clerk of Mr. B.D. Pande, Advocate, stating the fact that the case could not be marked by him on that day. The said assertion has been sworn in by the petitioner on the delay condonation application on his personal knowledge. There is nothing on record to suggest that how the petitioner came to know about the dismissal of the writ petition personally. The petitioner miserably failed to satisfy the Court that delay in filing restoration application is bonafide.;


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