Mahesh Bhagwati, J. - (1.) HEARD learned counsel for the parties on an application filed under Section 5 of Limitation Act, whereby the appellant has implored to condone the delay of 1169 days. Learned counsel for the appellant canvassed that he could not mark the case on 12th December, 2005 when the case was listed for admission. He came to know about the fact of dismissal of appeal in default on 9th March, 2009 when he enquired to ascertain the status of the appeal. Soon thereafter he applied for certified copy on 23rd March, 2009 and thereafter filed the restoration application. Hence, the delay was genuine and bonafide and thus, the delay deserves to be condoned.
(2.) LEARNED counsel appearing for the Insurance Company has opposed the application. It is relevant to record that the learned counsel for the appellant is required to explain each day's delay in filing the restoration application. The appeal came to be dismissed in default of appearance on 12th December, 2005. Thereafter the learned counsel never made any effort to ascertain as to what happened to the case when it was not listed for a long period of 1169 days. This clearly shows that the counsel was not at all interested in prosecuting the appeal. Otherwise too, the negligence of the counsel to such a great limit that he did not bother to find out the status of the appeal for approximately four years, cannot be permitted to be encouraged by allowing the restoration application.
(3.) LEARNED counsel has utterly failed to assign sufficient cause and give reasonable explanation in filing the restoration application after 1169 days of the expiry of period of limitation. Hence, on account of there being no sufficient cause and reasonable explanation, I do not find any reason to condone the delay of 1169 days and thus the application U/s. 5 of the Limitation Act deserves to be dismissed, which stands dismissed accordingly. Consequent upon the dismissal of application under Section 5 of Limitation Act, the restoration application does not survive and that also stands dismissed.;