- (1.) The appellant herein filed an application for restoration of the appeal by recalling the order dated December 12, 2006 passed earlier by the Division Bench of this Court in the appeal being APO No. 474 of 2004. An application has also been filed for condonation of delay in filing the said restoration application by the appellant herein.
(2.) We have heard the learned Counsel of the respective parties in connection with the aforesaid applications. From the records, we find that by the order dated December 12, 2006, the appeal was dismissed by the Division Bench of this Court on the ground of default since none appeared on behalf of the appellant in spite of repeated calls. Mr. Bari, learned Counsel for the appellant, submits that the learned Advocate of the appellant missed the list and, therefore, could not appear before the Division Bench on Decemeber 12, 2006 to argue the appeal.
(3.) Mr. Bari referred to and relied on a decision in the case of Ram Kumar Gupta and Ors. vs. Har Prasad and Anr., 2010 1 SCC 391, and submits that the appellant cannot be punished for the lapse of the learned Counsel, who was duly engaged by the appellant to contest the appeal. Mr. Kashi Kanta Moitra, learned Senior Counsel appearing on behalf of the respondent No, 1, submits that the aforesaid order of dismissal dated December 12, 2006, passed by the earlier Division Bench of this Court, was duly communicated to the then Teacher-in-Charge, who was acting in absence of the Head Master of the School, by the learned Advocate of the respondent No. 1 herein, on September 2, 2007, which was undisputedly received by the then Teacher-in-Charge. In spite of having specific knowledge in respect of the order of dismissal dated December 12, 2006, the then Teacher-in-Charge, Mr. Shyamal Kumar Baidya, who was acting in absence of the Head Master of the School, did not choose to file any application for recalling the said order. Thereafter, the learned Advocate of the said respondent No. 1 on July 24, 2009 informed the Head Master of the School about the order of dismissal dated December 12, 2006, which was also received by the office of the Head Master in time. The said Head master, however, decided to file an application in the year 2010 and affirmed the application for restoration on February 18, 2010 and thereafter, on March 26, 2010 affirmed the other application for condoning the delay in filing the said application for restoration. The long and unusual delay in filing the aforesaid applications was not explained by the appellant herein. The present Head Master joined the School in the year 2008. The then Teacher-in-Charge of the School, who was acting in absence of the Head Master at the relevant time, in spite of having specific knowledge of the said order of dismissal of the appeal, chose not to take any step for restoration of the appeal. The present Head Master did not take any step even after joining the said School, specially when the order of dismissal of the appeal was again communicated by the learned Advocate-on-Record of the respondent No. 1 by written communication dated July 24, 2009.;