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Judgment
K.N. Basha, J
Mr. Deepak Vaid, the learned counsel for the Review Petitioner is present today.
2 . It is pointed out by the learned counsel for the review petitioner that this Bench while passing an order on 23.4.2014 condoning the delay of 19 months and 9 days for filing the review petition. Regarding the statement made by the learned counsel to the effect before 26.7.2011, the applicant preferred Form-5 and thereafter they are not aware of the next date of hearing and the matter was posted on 26.7.2011. Again the matter was posted on 9.8.2011 and both the dates of hearing are not known within the knowledge of the petitioner and as a result no one represented the petitioner and ultimately this O.R.A. No. 94 of 2009 was dismissed for default as per the order dated 11.8.2011 (As per Order No. 115 of 2011). The learned counsel would contend that there is no lapse on the part of the petitioner, as they have already written letters to the Registry seeking for the next date of hearing, but they have not received any intimation. It is further contended that they have also resort to file Right to Information application and at that time they came to know that there is no intimation to the petitioner regarding the next date of hearing. It is contended that all these factors already stated before the Bench during the course of hearing of the condone delay petition to file the review petition. The learned counsel today would produce the communication dated 18.04.2013 signed by the Registry in response to their query under the Right to Information Act, 2005 wherein it is stated that fresh notice of the dates of hearing was fixed on 11.8.2011 was not served on the ground as the date of hearing has already been fixed by the Bench. The learned counsel would contend that there is no deliberate default on the part of the petitioner and only due to the above said circumstances neither the petitioner nor the counsel would appear before the Bench, as a result, the Bench dismissed the above ORA on the ground of default. It is contended that the matter may be heard on merits in the interests of justice. The learned counsel accordingly would submit that the order dated 11.08.2011 may be set aside.
We have carefully considered the contention of the learned counsel for the review petitioner and also perused the materials including the earlier order passed by this Bench.
The fact remains that the petitioner/applicant filed Form-5 seeking for the relief of adjournment on 26.7.2011 and on the basis of the said Form-5 this matter was adjourned to 9.8.2011. We have already pointed out while condoning the delay in preferring the review petition that it is the duty of the petitioner/applicant to verify the next date of hearing. It is brought to the notice of this Bench that at the time the petitioner sent letters to know the next date of hearing, but they have not received any reply from the Registry. The learned counsel for the petitioner today produced the communication dated 18.04.2013 from the Registry answered the query raised by the petitioner under the Right to Information Act. It is seen that as per the reply, the matter was adjourned to 9.08.2011 as per the order dated 26.07.2011 on receipt of Form-5 from the petitioner. Again on 9.08.2011 neither the applicant nor the respondent were present and as such, the matter was posted for dismissal on 11.08.2011 and on that date this Bench had dismissed the application for default after waiting till 3.15 p.m.. The reason for non-appearance as pointed out by the learned counsel for the petitioner is to the effect that they were not aware about the dates of hearing and they have not been served with the notice regarding the next date of hearing from the Registry. However, it is seen that the petitioner has taken efforts to find out the next date of hearing. Admittedly, notice regarding the dates of hearing were not served on the petitioner, as per the communication dated 18.04.2013 sent by the Registry in response to the query raised by the petitioner under the Right to Information Act. Therefore, we are of the considered view that there is no deliberate lapse on the part of the petitioner and he has been absented for appearing only due the above said circumstances.
It is seen that the learned counsel for the respondent appeared on 26.07.2011 and submitted before the Bench that there is no instructions from the respondent. It is also relevant to note that the respondent was not present on 9.08.2011 as well as on 11. 08.2011. It is pertinent to note that the respondent already received notice in the review petition. Considering on such conduct of the respondent, we are of the view that the petitioner cannot be denied to argue the matter on merits. Accordingly, this review petition is allowed and the order passed by the Bench on 11.08.2011 as per order No. 115 of 2011 is hereby set aside. The Registry is directed to post the matter for hearing on 19.03.2015.
The Registry shall send notice to both the parties regarding the posting of this matter as well as to their counsel.