- (1.) IN this interlocutory application, the applicant -petitioner has prayed for condonation of delay of 152 days in filing C.M.P. No. 206 of 2005. It has been stated that the petitioner had filed S.A. No. 102 of 2004. He had handed over the brief to his counsel and subsequently, by letter dated 11.2.2005, the concerned counsel informed the petitioner that his case was about to be finally heard and for that purpose he had also asked to pay hearing fee. When the applicant -petitioner came and enquired about the appeal, he found that his appeal was already dismissed long back for noncompliance of the peremptory order dated 23.9.2004. It has been submitted that the petitioner was all along in bona fide belief that his appeal has been admitted and is pending for hearing. The then learned counsel had also written a letter much after the date of dismissal of the appeal asking him to pay hearing fee. The petitioner is a resident of distant place in Godda. He was not aware about the dismissal of the appeal and was never informed by his counsel. It has been submitted that when the petitioner came to know about the dismissal, he immediately thereafter, filed C.M.P. No. 206 of 2005 praying restoration qf Second Appeal. There was no wilful laches or negligence on the part of the petitioner and he was prevented from not filing the petition within the prescribed period of limitation under the said circumstance beyond his control.
(2.) NOTICES were issued to the respondents learned counsel for the respondents submitted that, there is no proper explanation of the reasons for the delay. He was all along negligent. After filing the appeal, it was his duty to enquire about the same from his counsel from time to time, but the applicant -petitioner did not do so. The petition for restoration has been filed after a long delay. The prayer of the petitioner thus, deserves to be rejected. I have heard learned counsel for the parties and considered the reasons assigned by the petitioner. It is an admitted fact that the petitioner had engaged his counsel and filed Second Appeal. The petitioner claimed that after filing of the appeal, he was never informed about the progress thereof and after a long delay, a letter dated 11.2.2005 was sent to him asking for payment of fee for final hearing. The letter dated 11.2.2005 of the concerned counsel has been brought on record as Annexure -1 in which it has been stated that the appeal was to be listed for final hearing, whereas the same was dismissed long back. The petitioner, to be at fault. This Court is, thus, satisfied that he was prevented from filing C.M.P. for restoration under the said circumstance beyond his control. Though learned counsel for the respondents opposed the petitioner's application, he has not contradicted the facts and the reasons stated in the application by fling any affidavit in opposition.
(3.) HOWEVER , though this Court is satisfied that the petitioner has been able to explain the delay in filing the petition properly, yet since the respondents have engaged their counsel and have incurred expenses in contesting the C.M.P. for their no fault, this interlocutory application is allowed and the delay in filing C.M.P. is condoned, subject to payment of cost of Rs. 500/ - (five hundred) to the respondents within a period of three weeks.;