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Judgment
Ashok Menon, Chairperson
Heard the Ld. Counsel for the Appellant/Applicant in I.A. No. 87/2022 and none appeared for the Respondents.
This is an application for condonation of delay in filing restoration application to restore the Misc. Appeal No. 72/2014 which was dismissed for default. There is delay of 992 days, according to the Registry in filing Appeal.
Ld. Counsel appearing for the Appellant/Applicant submits that excluding the time affected by Covid Pandemic as directed by Hon’ble Supreme Court in Suo Moto Writ Petition No. (C) No. 3/2020, the period from 15.03.2020 to 28.02.2022 has to be excluded while calculating delay and the actual delay then reduces to294 days. The Appellant/Applicant states that the delay was caused as the advocate engaged by Appellant/Applicant migrated to Canada, therefore, she was left in the lurch without a counsel to defend her cause and she was not aware about the happenings in the Court. Ultimately when it was understood that the Appeal was dismissed, it was too late and by then, the Pandemic had set in. Therefore, the Appellant/Applicant had to file application for condoning the delay in filing restoration application. Ld. Counsel submits that the delay be condoned and restoration application be restored to file.
The Reply has been filed. Respondent has objected to the reasons mentioned in the application for condonation of delay but has not raised any serious objections on the merits to the condonation of delay.
On going through the reasons mentioned in the application and also supported by the decision of Hon’ble Supreme Court in “Rafiq & Anr. V/s Munshilal & Anr. 1981 AIR 1400”, wherein it is stated that the party should not suffer because of the absence of lawyer in Court. There is also reason to condone the delay because the party was otherwise prosecuting the matter diligently that has not deliberately caused the delay. That apart, it is the dwelling house of the Appellant/Applicant which is put on sale and she has to rescue her dwelling house at any cost and prevent her family from being dispossessed.
Considering the facts, there is huge delay in filing the application, it shall be condoned on payment of costs of Rs.5,000/-(Rupees Five Thousand Only) to the DRT Bar Association, Mumbai within the period of two weeks, failing to do so, would entail in the application being dismissed.
Post on 19.05.2022 before Registrar for reporting compliance of payment of costs.