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Judgment
In this writ petition, the petitioner has impugned the orders dated 03.02.2010 and 19.05.2010. Vide order dated 03.02.2010, the appeal filed by the father of the petitioner was dismissed for non-prosecution and by virtue of order dated 19.05.2010, an application seeking restoration of the said appeal was dismissed.
It is stated that the father of the petitioner died on 21.05.2009 and within the period of limitation, the petitioner had filed the application for bringing himself on record as legal representative of the deceased father and in support of that, the petitioner claims to have placed on record the copy of the will and death certificate. Due to absence of the petitioner as well as his counsel, the appeal was dismissed for non-prosecution on 03.02.2010 and thereafter, a motion was laid by the petitioner for restoration of the same but that too was dismissed by the learned Tribunal vide order dated 19.05.2010. It is stated that application for restoration of the appeal was required to be allowed.
Response stands filed by the respondents in which factual aspects regarding merits of the appeal have been narrated.
Mr. Harsh Dubey, Advocate vehemently argued that the appeal was dismissed for non-prosecution on 03.02.2010 and the said appeal was dismissed despite appearance of counsel for the appellant.
Mr. Rajnish Raina, Advocate argued that grounds urged in the writ petition are contrary to the record.
Heard learned counsels for the parties.
This is an admitted fact that the appeal filed by the father of the petitioner has not been decided on merits and also, it is borne from the record that the petitioner had laid a motion for bringing himself on record as legal representative of the deceased father but for one or the other reason, the appeal was dismissed for non-prosecution on 03.02.2010 and thereafter, even the application for restoration of the same was also dismissed.
Be that as it may, we do not intend to go into the merits of the claim of the petitioner with regard to absence on the day when the appeal was dismissed but the fact remains that the original appellant has expired. We are of the view that every effort is required to dispose of the lis on merits.
In view of the above, the orders dated 03.02.2010 and 19.05.2010 those are impugned in the present petition are set aside and the matter is remanded back to the learned Special Tribunal to proceed in accordance with law.
Disposed of.