Delhi High Court
The Secretary, Railway Board, ... vs Sh.Gurdial Singh on 25 May, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C ) No. 7017/2007
% Date of Decision: 25.05.2011
The Secretary, Railway Board, Ministry of Railway .... Petitioners
& Ors.
Through Mr.V.S.R.Krishna & Mr.Abhisek Yadav,
Advocates for UOI
Versus
Sh.Gurdial Singh .... Respondent
Through Mr.A.K.Mishra, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may be NO
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
CM Nos.4607 & 4608/2011
These are the applications by the petitioners/applicants for
recalling the order dated 13th January, 2010 dismissing the writ
petition in default for non-appearance of petitioners and their counsel,
and for condonation of 372 days delay in filing the application for
restoration.
The applicants/petitioners have contended that on 13th January,
2010 the counsel for the applicants/petitioners had cases listed before
the Central Administrative Tribunal, and, therefore, he could not appear
before the Court on that day when the matter was called for hearing. It
is further contended that though the juniors to the counsel had been
briefed about the hearing of the above noted case in the High Court,
however, even his juniors could not reach the Court in time.
The applicants/petitioners have further contended that the
petitioners were also not present, as they were not aware about the date
of listing of the case as it was not intimated by the counsel for the
applicants. The applicants/petitioners have also contended that there
was no intention not to prosecute the present case, and the sequence of
events would show that all serious attempts were made by the
applicants/petitioners before the Court at the time of hearing.
The applicants/petitioners have further contended that they
came to know about the dismissal of the case on 13th December, 2010
after the same was brought to the notice of the petitioners/applicants
by the respondent by his representation dated 1st September, 2010. The
applicants/petitioners have contended that consequent to the dismissal
of the writ petition on 13th January, 2010 the respondents, for reasons
best known to them, had submitted their representation for
implementation of the order of the Tribunal only on 1st September,
2010, which was received by the petitioners/applicants on 13th
December, 2010.
The applicants/petitioners have also sought condonation of delay
of 372 days in filing the application for restoration on the ground that
the petitioners/applicants came to know about the order passed only on
13th December, 2010 when they received a communication from the
respondent dated 1st September, 2010, and, thereafter, the case was
processed on 20th December, 2010 and the application for restoration
and of condonation of delay was filed on 16th March, 2011.
Replies to the application have not been filed by the
respondent/non applicant, however, it has been pointed out that on 7th
January, 2010 the Court had closed the right of the petitioners to file
the rejoinder, as on 17th November, 2009 despite last opportunity
granted to the petitioners to file the rejoinder within four weeks subject
to payment of Rs.4,000/- as cost, neither the cost was paid, nor the
rejoinder was filed. On 7th January, 2010 after closing the right of the
petitioners to file the rejoinder, the matter was adjourned at the request
of learned counsel for the petitioners for 13th January, 2010. Learned
counsel has also pointed out that even on earlier dates of hearing the
matter was adjourned by the petitioners on one pretext or the other
after obtaining an ex parte stay of the order of the Tribunal by order
dated 24th September, 2007 and the matter had been lingering since
then.
Learned counsel has pointed out that since the matter was fixed
for 13th January, 2010, it was incumbent upon the learned counsel for
the petitioners to enquiry as to what had been happened to the matter
on that date. The plea of the learned counsel for the petitioners is that
he was held up in the Central Administrative Tribunal and he had
instructed his juniors about the case. Though no one appeared on 13th
January, 2010, however, it cannot be contended by the learned counsel
for the petitioners that he was not required to ascertain as to what
happened on 13th January, 2010 and to wait regarding the outcome of
the proceedings on 13th January, 2010 till the representation dated 1st
September, 2010 was sent by the respondent which was received by the
petitioners on 13th December, 2010.
Learned counsel for the respondent has also contended that no
sufficient reasons have been disclosed for condonation of delay even
after 13th December, 2010, as the applications have been filed almost
four months after that on 16th March, 2011. In the circumstances, it is
contended that no sufficient cause has been made out by the
petitioners/applicants for condonation of delay of 372 days.
We have heard the learned counsel for the parties. It is apparent
that despite the service of the applications on the respondent, replies to
the application have not been filed. Rather at one point, the learned
counsel for the respondent had even contended that the delay be
condoned and order of dismissing the writ petition in default be set
aside subject to some conditions.
Therefore, in the totality of the facts and circumstances and in
the interest of justice and considering the pleas and contentions of the
parties, the delay in filing the application for recalling the order of
dismissing the writ petition in default is condoned, and the order dated
13th January, 2010 is recalled subject to payment of cost of Rs.25,000/,
payable by the petitioners/applicants to the respondent. Cost be paid
within four weeks. Writ petition is restored to its original number
WP(C ) No. 7017/2007
List on 25th July, 2011.
Dasti.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
MAY 25, 2011.
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