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Judgment
Through the medium of this application condonation of delay in filing the application for readmission of appeal is prayed. The appeal (CIA No.
100/89) was dismissed on August 20,1998 when Mr. Z. A. Shah, counsel for the applicant had stated in the court that he had no instructions from
his client. On this statement being made by the counsel, the appeal was dismissed for nonprosecution. This application was filed on Nov: 20,1998
stating therein that the applicant came to know about the passing of the dismissal order on Nov: 12,1998 when notice in the execution proceedings
was received. After the receipt of the notice no time was spent in filing the application. In the objections it is pleaded that the applicant was not
diligent in pursuing the appeal in time and at that time the court was generous in condoning the delay and allowing the time barred appeal to be
filed. Later on, the applicant was careless in perusing the appeal which was dismissed for nonprosecution on 20.8.1998 because the counsel had
no instructions. The applicant was duty bound to be vigilant for each and every date of hearing and the present application was filed after four
months and there is no sufficient cause to condone the delay.
Heard the arguments.
The counsel for the applicant had stated that when the counsel for the applicant (Mr. Z.A. Shah) stated that he had no instruction from his client,
the court ought to have given a notice to the applicant but on the same day the appeal was dismissed. This circumstance is sufficient to condone the
delay and in support of this contention the learned counsel has cited AIR 1998 SC 258 and 1993 Supple (HI) SCC 256. The counsel has further
stated that the restoration application was filed after two months from the expiry of period of limitation and not four months as is alleged in the
objections.
In AIR 1998 SC 256, the defendants therein had engaged counsel to defend suit filed against them. Suit proceeded exparte and exparte decree
passed on counsel reporting no instructions. Neither counsel reported this fact to defendants nor court issued notice to them. The defendants got
knowledge of exparte decree only when they approached the counsel. Defendants filed the application to set aside the decree within four days of
the knowledge. In these circumstances defendants were found not careless or negligent and exparte decree was held liable to be set aside. In 1993
Supple (III) SCC 256 the case was fixed on March 15,1974 and the counsel of the petitioners who was present withdrew from the case. There
was no record to show that petitioners had the notice of the hearing of the case on that day The apex court held that in the interest of justice fresh
notice for actual date of hearing should have been sent to the parties. The apex court deprecated the decreasing trend of service element and
increasing trend of commercialisation in the legal profession. Adverting to the facts of the present case, it is found that the applicant herein had no
knowledge of the date of hearing fixed in the case and there is no record to show that counsel had informed them. Applying the tests laid down in
the above stated two cases of the apex court to the facts of the present case, the delay of two months in filing the appeal is condoned. Accordingly
CMP No. 816/98 is accepted and with its acceptance CMP No. 2377 98 stands disposed of with the condonation of delay and Appeal (CIA
No. 100/89) stands readmitted. The office is directed to list the appeal for hearing oh an appropriate date.