Shiv Kumar Sharma, J. - (1.) IN intra court appeal bearing No. 622/1997 pending for the last eleven years, when counsel for the Rajasthan Housing Board (for short 'RHB') did not appear at the time of hearing, the Court heard ex -parte arguments of the learned Counsel for the appellant and allowed the appeal. Now the respondent RHB has filed two applications seeking review of the ex -parte order.
(2.) CONTEXTUAL facts depict that M/s. Anukampa Builders Pvt. Ltd. filed DB Civil Special Appeal No. 622/1997 impugning the order dated September 16, 1996 of learned Single Judge on December 7, 1996 against respondent RHB. On July 21, 1997 notices were issued to RHB. Notices were served and the matter was listed for admission on August 10, 1998. The matter was adjourned from time to time thereafter on May 7, 2003 the appeal was admitted and the Registry was directed to list the appeal for hearing. The appeal however could not be heard for a period of four years. Thereafter on July 6, 2007 following order was passed by this Court: Counsel for the appellant has been heard but the counsel for the respondent Shri Manoj Sharma, whose Vakalatnama is on the record of the file, has not appeared. List this appeal for dictation of order on 10th July, 2007. On July 10, 2007 Mr. S.M. Mehta, Sr. Advocate with Mr. R.S. Mehta, counsel for appellant appeared, but again Mr. Manoj Sharma counsel for RHB did not appear and the matter was adjourned for pronouncement of order on August 7, 2007. On August 7, 2007 since one of the member of Division Bench demitted the office, the matter was directed to be listed before regular Bench for hearing on August 23, 2007. The matter was thereafter adjourned to September 17, 2007. Again on September 17, 2007 nobody appeared on behalf of RHB and the special appeal was decided in absence of counsel for RHB thus: Being aggrieved by the order dated November 24, 1993 of the Rajashan Housing Board the appellant preferred writ petition before learned Single Judge assailing the said order whereby 25% of the amount deposited was forfeited. Since the instant matter is pending for last more then ten years and the instant matter is a case of frustration of contract, the appellant, filed additional affidavit and restricted its prayer to the refund of earnest money amounting to Rs. 9,20,380/ -. Having scanned the material on record we find that the amount Rs. 9,20,380/ - was deposited by the appellant with the Housing Board, the appellant is entitled to get the refund along with interest at the rate of 9% per annum. For these reasons, we dispose of instant appeal with the direction to Rajasthan Housing Board to refund the forfeited amount along with interest at the rate of 9% per annum within sixty days from the date of receipt of certified copy of this order. The RHB seeks to recall this order on the ground that absence of Shri Manoj Sharma Advocate on September 17, 2007 was bonafide.
(3.) THE reason for non -appearance of Shri Manoj Sharma, Advocate, incorporated in the application is as under: When the appeal was called on for hearing on 17 -09 -2007, the counsel for the respondent was not present due to the fact that he had taken the weekly cause list from internet in which name of the case was not appearing. Therefore, the counsel for the respondent had no notice of the case due to the above -mentioned fact. In the facts and circumstances, absence of the counsel for the respondent on 17.09.2007 was not deliberate or intentional.;