National Small Industries ... vs Mahender Singh Hada
2016 Latest Caselaw 1848 Del

*               HIGH COURT OF DELHI AT NEW DELHI

+                            RFA 600/2001
                                                Decided on: 8th March, 2016

       NATIONAL SMALL INDUSTRIES CORPORATION LTD.
                                                               ..... Appellant
                             Through:    Mr. P.C. Shukla, Advocate


                             versus
       MAHENDER SINGH HADA                            ..... Respondent
                             Through:    Nemo.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

CM APPL.8585/2016 (restoration) & CM APPL.8586/2016 (delay)

1. These are two applications filed by the appellant. CM APPL.8585/2016 is for restoration of the appeal and CM APPL.8586/2016 is for seeking condonation of delay of 2485 days in filing the application for restoration.

2. I have heard the learned counsel for the appellant. I have also gone through the record.

3. This is an appeal which was filed by the appellant against the judgment and decree dated 19.07.2001 by virtue of which the suit of the appellant for recovery of approximately Rs.2 lacs filed against the respondent was dismissed.

4. The appeal had come up for hearing for the first time on 19.12.2001 when it was admitted and the matter was directed to be listed before the Joint Registrar for service of the respondents. The respondents were served and thereafter in routine course the matter was shown in the regular list in the month of May, 2009. On 31.03.2009 the matter was listed before the Court for regular hearing. However, nobody had appeared and accordingly the matter was adjourned to 06.05.2009. On the said date also there was no appearance on behalf of the appellant and consequently the appeal was dismissed for non prosecution.

5. The appeal having been dismissed for non prosecution, the present application seeking condonation of delay of 2485 days has been filed by the appellant contending that they were not informed by their counsel about the dismissal of the matter and it is only that recently they learnt about the same and they filed application seeking not only recall of the order dated 06.05.2009 but also condonation of delay of 2485 days. In between, it has been stated that since the matter was not being listed, they had been regularly in touch with the dealing staff and the other staff of the Court to find out as to when the matter will be listed and therefore, this constitute sufficient cause although the terms 'sufficient cause' is no where mentioned in the application.

6. I have gone through the record. I feel that this is a case where there has been gross negligence on the part of the appellant in prosecuting the matter. The appeal was admitted on 19.12.2001.

Once the appeal is admitted, it will obviously be reflected in the regular list according to the year wise. This regular list is published almost daily and if the counsel for the appellant was vigilant, he would have spotted the matter in the regular list. It seems that the counsel, who represented the appellant was not observing the list at all. Even if the learned counsel for the appellant is given benefit of doubt that he was not looking or was not in a position to look for the list, at least the appellant himself ought to have been vigilant in prosecuting and following it up when the stakes were very high. This has not been done and it seems that what the appellant contended was that once the appeal is handed over to the counsel, it is his responsibility to chase the matter. That is not the position in law. The client must also be vigilant and be in touch with his counsel and find out from time to time with regard to status of his case, which in the instant case has not been done by the appellant at all. This resulted in considerable delay of the appeal in entertaining the application seeking condonation of delay.

7. I feel that the appellant has been in grossly negligent in prosecuting the matter and by permitting it to condone the delay of 2485 days, it would be putting premium on the conduct of the appellant. This cannot be permitted to be done more so, when the Courts are already relict under the burden of numerous new legislatures because of which new offences are committed.

8. For the abovementioned reasons, I feel that the application for the condonation of delay filed by the appellant is totally misconceived and the same deserves to be dismissed.

9. Since the application for condonation of delay itself is dismissed, therefore, there is no question of restoring the appeal.

10. Ordered accordingly.

11. File be consigned to record room.

V.K. SHALI, J.

MARCH 08, 2016 vk