- (1.) HEARD learned counsel for the applicants.
(2.) APPLICANTS, who are said to be legal representatives of deceased-appellant Bheru Lal, have filed this application for restoration of the appeal on 02.03.2012, which was dismissed in default way back on 31.08.2004, along with an application under Section 5 of the Limitation Act for condonation of delay of 2710 days i.e. about 6- years. Applicants have also filed an application seeking permission to file the above noted restoration application as they were not parties in the appeal. Submission of the learned counsel for applicants is that when the appeal was listed in the Court on 31.08.2004, the case could not be marked in the cause list, therefore, Counsel for applicants could not attend the case, as a result of which the above appeal was dismissed in default. He also submitted that sole appellant Bheru Lal had already expired on 20.02.2000, as such applicants seek indulgence to file the present restoration application. He submitted that factum of dismissal of appeal was not in the knowledge of appellant or his Counsel, therefore, delay in filing the application be condoned. We have considered the submissions of the learned counsel for applicants. Counsel for the applicants has not annexed the cause list dated 31.08.2004 of appellant's Counsel to show that the case could not be marked in his cause list. Affidavit of Counsel for deceased-appellant asserting that case could not be marked by him in the cause list, has also not been filed. As per averments made in the applications, sole appellant Bheru Lal had already died on 20.02.2000, therefore, factum of dismissal of appeal could not have been in knowledge of deceased-appellant. No steps were taken by the present applicants for substitution of legal representatives of deceased-appellant during the period from 20.02.2000 to 31.08.2004. The appeal, therefore, had abated automatically after expiry of a period of 90 days from the date of death of sole appellant i.e. 20.02.2000. Nothing has been mentioned in the application as to why necessary steps for substitution of legal representatives of deceased-appellant were not taken from 20.02.2000 till the date of dismissal of the appeal in default, way back on 31.08.2004. It appears that nobody on behalf of sole appellant contacted his Counsel, therefore, nobody attended the case on behalf of appellant and it was dismissed in default.
(3.) SUBMISSION of the learned counsel for applicants cannot be said to be correct or bonafide, in the facts and circumstances of the present case. No explanation of whatsoever nature has been given as to why steps were not taken for substitution of legal representatives of deceased-appellant, even in the application for restoration of the appeal or in the application seeking permission to file the present application. Even if the case was not marked by Counsel, then it was a duty of the applicants to move an application for substitution of their names in place of deceased-appellant and to find out the latest position of the case during the period from 20.02.2000 to 31.08.2004. Even after dismissal of the appeal in 2004, neither legal representatives of sole appellant, nor their Counsel took trouble to find out the latest position of the case. In these circumstances, we are of the view that the explanation furnished by the applicants in all the three applications, does not appear to be correct or bonafide, so as to prove sufficient cause to condone the delay of 6- years in filing the application for restoration of appeal or for seeking permission to file the present application. This is a case of gross negligence on the part of the applicants, which cannot be condoned. In these circumstances, we find no merit in any of the submissions of the learned counsel for applicants and all the three applications deserve to be dismissed and are hereby dismissed. ;