Killick Nixon Limited vs State of West Bengal

Basudeva Panigrahi, J.—The writ Petitioner, has filed an application to recall the order dated December 4, 1991, whereby and whereunder the writ Petitioner was dismissed for default.

The Petitioner has filed the original writ petition challenging the award passed by the learned 5th Industrial Tribunal, West Bengal on (sic) the time of filling of the (sic) for an interlocutory order and he was directed to pay to the private Respondents at the rate Rs. 800.00 per month from the date of application till the date of disposal of the writ petition. It has been submitted by the Petitioner that in terms of the order the Petitioner has been regularly paying Rs. 800.00 to the Respondent No. 3. The Petitioner, however, has stated to have contacted its lawyer for the first week of June, 1999, to ascertain the actual position of the matter and to take steps immediately. But the learned Advocate of the Petitioner did not supply the necessary information to the company as a result of which it had to engage another lawyer for conducting this case.

The grounds for recall of the dismissal order is that although the matter appeared in the peremptory list on December 4, 1991, but it was wrongly printed in the cause list. Therefore, the Petitioner''s advocate could not take proper stops. The correct No. of the case being 2738 of 1991 but it was printed 278 of 1991. Therefore, the learned Advocate previously appearing for the Petitioner could not take any stops.

In support of the contention the copy of the cause list dated December 4, 1991, has been filed. From the cause list, it appears that the number of the case has been written as ''2738'' of 1991, but the parties has been wrongly described. It is for the lawyer who was engaged by them to state whether he had been misled on account of wrong description made in the cause title. But it is strange the previous lawyer has not made any communication to that effect nor shorn any affidavit in support of the contention raised by the Petitioner.''

It has been next submitted that after the new Advocate was engaged, he could come to know about the previous dismissal. I do not also find any supporting evidence to the effect that the present lawyer was contacted in July, 1999, as a reason whereof he collected the information from the Court and the matter was dismissed for default as far back as on December, 4, 1991.

The learned Advocate further has pointed out that the interim order passed by this Court is being acted upon till date. It is true that the Respondent No. 3 has been receiving Rs. 800.00 as previously directed by the Court but this alone shall not be a ground available to the Petitioner claiming restoration of the case.

There is no bona fide ground for restoration or recall of the order. The entire blame for not taking any steps in the matter cannot be placed on the Petitioner''s earlier Advocate. The Learned Advocate appearing for the Petitioner has relied upon a judgment in the case of The Ganganagar Sugar Mills Ltd. Vs. Upper Ganges Sugar Mills Ltd. and another, The facts of that came are totally different from the facts of the present case. In the above mentioned judgment there was an application for inspection of the records but it is strange to note no such application for inspection has been filed in this case to show the Petitioner''s bonafide. Thus it can safely be concluded that the Petitioner was not all along acting diligently and there was enough evidence of negligence and/or laches on the part of the Petitioners. In this case reliance can be placed on the judgment of the Supreme Court in the case of P.K. Ramachandran v. State of Kerala J.T. 1997 (8) 189 whether explanation for delay being resonable and satisfactory which is prerequisite to condonation of delay. In this case since the Petitioner has utterly filed to explain delay for about 8 years, in such backdrop, it is neither reasonable nor expedient to condone delay and recall the order of dismissal. Accordingly, the application is dismissed but in the circumstances without costs.

All parties shall act on a signed xerox copy of the judgment on usual undertaking.