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Judgment
ORDER
Heard Mr. Gaurav Mitra, learned counsel for the applicant.
It is a peculiar restoration application which has been filed after lapse of several years. The Company Appeal(AT) No.267/2017 which was filed under the provisions of Companies Act was dismissed long back on 29.07.2019 due to non-prosecution. Before proceeding it would be appropriate to reproduce the order dated 29.07.2019 as follows:
“29.07.2019- On 18th August, 2017, in spite of repeated calls, nobody appeared on behalf of the Appellants.
2.On 24th August, 2017, learned counsel for the Appellants appeared and following order was passed:
“24.08.2017 –Ld. Counsel for the appellant is allowed two days’ time to file complete set of the impugned judgement dated 20th April, 2017. The Petition for condonation of delay and the appeal will be considered thereafter.”
3.Today inspite of the repeated calls, nobody appears on behalf of the Appellants, though two years have passed. No petition for condonation of delay has been placed on record.
4.In the circumstances, the appeal is dismissed for non-prosecution. No cost.”
On perusal of the aforesaid order it is evident that it was not a simple case of non-appearance on repeated calls but it was also noticed that no petition for condonation of delay was placed on record. Though the appeal was dismissed for non-prosecution on 29.07.2019 the present restoration application has been filed through e-filing on 11.01.2023 and hard copy was filed on 12.01.2023.
Mr. Mitra, learned counsel submits that the Appellant No.1 was the main person who was pursuing the appeal and since the earlier counsel had not taken the matter seriously and due to fault of earlier counsel the appeal was dismissed due to non-prosecution. The learned counsel submits that the applicant may not suffer due to lapse on the part of the earlier counsel. It was further pointed out that the applicant after receiving the order of dismissal due to non-prosecution was hospitalised for a long period till the month of January, 2020. However, subsequently due to Covid 19 the applicant was prevented from filing any restoration application. This is the reasons that the delay has occurred in filing the restoration application. Mr Mitra, learned counsel by way of referring to the Supreme Court Judgement reported in 1981(2) SCC 788. Rafiq & Anr Vs Munshi Lal & Ors and also High Court Judgement in the matter of Lalit Kumar Bhargava (now Deceased) Vs Devender Kumar Bhargava (IAs 7872/98 and 1494/89 and 931/90 in S. 614/86 submits that due to lapse on the part of the counsel the party may not be allowed to suffer. It was argued that due to lapse on the part of the earlier counsel the appeal was dismissed for non-prosecution.
We have examined the material on record. In the present petition nothing has been stated as to whether the applicant has lodged any complaint against the earlier counsel. It is easy to make allegation on a counsel but in such situation it is required that one must show as to what action was taken against the then counsel. No averment has been made in this regard. Moreover the appeal stood dismissed in the month of July, 2019. It is stated that the applicant No.1, who was pursuing the appeal was hospitalised and he was admitted upto January, 2020. Lock down period due to Covid 19 started from 22.03.2020. However, even thereafter the court started functioning through virtual mode and from August, 2022 this Court started the physical hearing. No explanation has been given as to during the physical hearing how the applicant was prevented to file the restoration application. In such view of the matter no leniency can be shown to the applicant.
We do not find any ground to restore the appeal.
The restoration application is accordingly dismissed.