Chattisgarh High Court
Bhuneshwar Prasad Soni vs State Bank Of India on 15 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCC No. 328 of 2021
Bhuneshwar Prasad Soni, S/o Late Shri Ramadhar Soni, Aged About
34 Years (Now Aged About 52 Years), R/o Katghora, Tahsil Katghora,
District Korba Chhattisgarh
---- Petitioner
Versus
1. State Bank Of India, Through The Managing Director, S. B. I. Head
Office, Mumbai (Maharashtra)
2. General Manager, State Bank Of India, Local Head Office,
Shankarnagar Near Bottle House, Raipur Chhattisgarh
3. Assistant General Manager, State Bank Of India, Regional Office,
Bilaspur Chhattisgarh
4. Branch Manager, State Bank Of India, Tahsil Katghora, District Korba
Chhattisgarh
---- Respondent s
For Applicant : Mr. S.B. Pandey, Advocate.
For respondents : Mr. P.R. Patankar, Advocate.
Hon'ble Smt. Justice Rajani Dubey
Order On Board
15/02/2023
1. The applicant has filed present MCC for restoration of WP No.
262/2002 which was dismissed for want of prosecution vide
order dated 21.11.2013.
2. Learned counsel for the applicant submits that WP No.262/2002
was filed by earlier counsel who subsequently left for heavenly
abode, which was not known to the petitioner, therefore, when
the case was called for hearing on 21.11.2013, no one could
appear to represent the applicant. He further submits that the
applicant tried to make contact with his previous counsel, but no
contact could be established. When he visited Bilaspur to
ascertain the status of his case, he came to know that his case
was dismissed on 21.11.2013 for want of prosecution. He also
submits that thereafter he applied for certified copy of order
dated 21.11.2013 and after obtaining the same, the instant
application has been filed with delay. He also submits that non-
appearance of the counsel for the applicant is unintentional and
bonafide, therefore, the present MCC may be allowed restoring
WP No.262/2002 to its original number.
3. On the other hand, learned counsel for the respondent opposing
the application for restoration of WP No.262/2002 submits that
present is a case of compassionate appointment and the earlier
counsel left for heavenly abode way back in the year 2020. He
also submits that earlier, vide order dated 18.11.2022, the
present MCC also stood dismissed for want of prosecution,
which was restored vide order dated 02.01.2023 in MCC
No.685/2022. It is next submitted that the applicant at the time of
filing of petition was 34 years of age and as on date he is aged
around 52 years, therefore, considering the facts and
circumstances of the case and prevalent rules of respondents,
no compassionate appointment may be given to the applicant. In
support of his submission, he placed reliance on the decision of
this Court passed in the matter of Virendra Kumar Shukla V.
Rajendra Shankar Shukla & Ors (F.A. No.148/2019 order
dated 28.09.2022) and Kaushalya Bai Vs. Ganga Bai & Ors.
(MCC No.572/2022, order dated 04.11.2022).
4. I have heard learned counsel for the parties and perused the
material available on record.
5. This Court in the matter of Virendra Kumar (supra), relying on
the decision of Hon'ble Supreme Court in the matter of Maniben
Devraj Shah Vs. Municipal Corporation of Brihan Mumbai
reported in (2012) 5 SCC 157 and Esha Bhattacharjee Vs.
Managing Committee of Raghunathpur Nafar Academy and
Ors. reported in (2013) 12 SCC 649, held that the appellant has
not been able to make out a strong case for grant of condonation
of delay of 450 days in filing the appeal. Para 10 and 11 are
extracted herein below :-
"10. In case of Maniben Devraj Shah Versus Municipal
Corporation of Brihan Mumbai, (2012) 5 SCC 157 the
Supreme Court in paragraphs 23 and 24 held as under:
"23. What needs to be emphasised is that even
though a liberal and justice-oriented approach is
required to be adopted in the exercise of power
under Section 5 of the Limitation Act and other
similar statutes, the courts can neither become
oblivious of the fact that the successful litigant
has acquired certain rights on the basis of the
judgment under challenge and a lot of time is
consumed at various stages of litigation apart
from the cost."
24. What colour the expression "sufficient
cause" would get in the factual matrix of a given
case would largely depend on bona fide nature
of the explanation. If the court finds that there
has been no negligence on the part of the
applicant and the cause shown for the delay
does not lack bona fides, then it may condone
the delay. if, on the other hand, the explanation
given by the applicant is found to be concocted
or he is thoroughly negligent in prosecuting his
cause, then it would be a legitimate exercise of
discretion not to condone the delay."
"11. The aforesaid principal have been further reiterated
by the Supreme Court in Esha Bhattacharjee Versus
Managing Committee of Raghunathpur Nafar Academy and
others, (2013) 12 SCC 649 wherein paragraphs 21.9(ix) and
21.10(x) it has been held as under:
"21.9.(ix) The conduct, behaviour and attitude of
a party relating to its inaction or negligence are
relevant factors to be taken into consideration. It
is so as the fundamental principle is that the
courts are required to weigh the scale of balance
or justice in respect of both parties and the said
principle cannot be given a total go by in the
name of liberal approach.
21.10.(x) If the explanation offered is concocted
or the grounds urged in the application are
fanciful, the courts should be vigilant not to
expose the other side unnecessarily to face
such a litigation."
6. In the given facts and circumstances of the case, considering the
conduct of the petitioner in pursuing the matter, the fact that no
satisfactory explanation has been offered in filing the MCC with
such inordinate delay and in view of decision of this Court in the
matter of Viren Kumar (supra), this Court is not inclined to
condone the delay. Accordingly, the instant MCC is dismissed as
being time barred.
Sd/-
(Rajani Dubey)
JUDGE
pkd
