Ali Naiku and Others vs Gul Mohd. and Others

Sunil Hali, J.

CMP No. 346/2005

An application for bringing on record the legal representatives of appellant Nos. 1 to 4 was filed in which notice was issued on 10.03.2004.

Direction was given to the applicants to furnish requisites for service on the respondents. It seems that steps were not taken by the applicants and

vide order dated 05.05.2004, two weeks time was given to the applicants to comply with the order dated 10.03.2004, failing which the

application was ordered to be dismissed without further reference to the Bench.

Having failed to comply with this direction, CMP No. 76/2004 came to be dismissed on 20.05.2004.

Applicants filed application for recalling the order dated 05.05.2004 and 20.05.2004 passed in CMP No. 76/2004. Along with this application

another application bearing CMP No. 346/2004 was filed seeking condonation of delay in filing the application for recalling the orders. In the

application, the applicants have contended that order dated 05.05.2004 was passed in their absence and they did not have the information or

knowledge of the same. It is stated that applicants acquired knowledge of the orders on 30.08.2005 when they were perusing the record of the

appeal file and steps were immediately taken to file the application for recalling the orders.

Objections have been filed by the other side, stating inter alia that applicants were aware of the order dated 10.03.2004 for taking steps for

service within two weeks. Respondents have stated that it is only the failure of the applicants to do the needful that a preemptory order came to be

passed on 05.05.2004. They have further stated that delay in filing the application has not been explained by the applicants.

I have heard the learned Counsel for the parties.

There is no doubt that order dated 05.05.2004 was passed in the absence of the parties and one can safely say that applicants had no

knowledge of the order passed on 05.05.2004. The contention of the applicants that they acquired the knowledge on 30.08.2005, when they

were examining the main file, has not been denied by the respondents in their objections. The only ground taken by respondents is that delay has

not been properly explained.

After having acquired the knowledge of the orders on 30.08.2005, the applicants have filed the present application on 01.09.2005, as such,

there is no delay in filing the application after acquiring the knowledge by the applicants.

I, therefore, find sufficient ground to condone the delay in the filing the application for recalling the orders dated 05.05.2004 and 20.05.2004.

The application is, accordingly allowed.

Application for recalling of orders dated 05.05.2004 and 20.05.2004 is also taken up for consideration. It be, accordingly, registered.

The application has been filed seeking recalling of orders dated 05.05.2004 and 20.05.2004. It is stated that order dated 05.05.204 was

passed in the absence of the applicants.

Perusal of the order reveals that order has been passed in the absence of the applicants. No objections have been filed by the respondents to

oppose this application.

I, therefore, allow this application and restore CMP No. 76/2004 to its original number, Applicants are directed to take steps for service of

the respondents within a period of three weeks from today.