Jharkhand High Court
Hindustan Petroleum Corporation ... vs M/S Shree Sainath Filling Station on 17 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.504 of 2018
1. Hindustan Petroleum Corporation Limited, a Government of India
Enterprise having its registered office at 17 Jamshedjee Tata Road, P.O. &
P.S. J.T. Road, Mumbai-400020 (Maharashtra) and one of its Regional
Office at Burma Mines, Opposite Star Talkies, P.O.- Tatanager, P.O. &
P.S. Sakchi, Jamshedpur, District-East Singhbhum, now shifted at Maru
Tower (5th Floor), Kanke Road, P.O. & P.S. -Kanke, Ranchi-834008
2. The Regional Manager-Retail, Hindustan Petroleum Corporation
Limited, Burma Mines, Opposite Star Talkies, P.O. Tatanager P.O. & P.S.
Sakchi, Jamshedpur, District-East Singhbhum, now shifted at Maru Tower
(5th Floor), Kanke Road, P.O. & P.S. Kanke, Ranchi, 834008.
Both represented by its Chief Regional Manager, Pawas Srivastava s/o
Sushil Kumar Srivastava, aged about 43 years, r/o C/o Retail, Hindustan
Petroleum Corporation Limited Maru Tower (5th Floor), Kanke Road, P.O.
& P.S. Kanke, Dist. Ranchi. ...... Petitioners
Versus
M/s Shree Sainath Filling Station, having its business at Sarsa, P.O. -Sarsa,
P.S.-Jasidih, District-Deoghar, through its proprietrix Smt. Soni Kumari,
Wife of Shri Manoj Kumar Bhagat, resident of Kajaria Kothi, Subhash
Chowk, P.O. & P.S., Town and District- Deoghar ......Opposite Party
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Petitioners : Mr. Ashutosh Anand, Advocate
For the State :
.....
Order No.06/ Dated:17.01.2024
1. The Case was taken up before entering into the merit of
delay condonation application and the Civil Miscellaneous petition
needs to refer herein that the Co-ordinate Bench of this Court has
issued notice upon the sole opposite party, namely, M/s Shree Sainath
Filling Station on the issue of condonation of delay as would appear
from the orders dated 17th October, 2023 and 7th December, 2023. It
further appears from the records that the steps have been taken but as
per the office note the respondent was not found in the address which
was disclosed by him in the petition.
2. This Court considering the aforesaid fact and also taking into
consideration the fact that in the instant appeal before dismissal for
non-prosecution the respondent had not called upon to represent
himself. As such, this Court is of the view that since no notice issued
to the sole respondent before the order by which the instant appeal has
been dismissed for non-prosecution and as such, if the delay
condonation application and the Civil Miscellaneous Petition will be
allowed, the case of sole respondent will not be prejudiced, the
restoration will be said to be at the stage where the case was.
3. Admittedly, herein Letter Patent Appeal was at the stage
when there was no notice upon the sole respondent was issued and as
such, there was no occasion for appearance of the sole respondent.
4. Considering the aforesaid facts this Court is proceeding to
examine the application for condonation of delay and the Civil
Miscellaneous Petition on merit.
5. The instant Civil Miscellaneous Petition has been filed after
delay of 173 days and interlocutory application has also been filed for
condoning the delay.
6. The Hon'ble Apex Court has already decided the issue in
Baddula Lakshmaiah and Ors. vs. Sri Anjaneya Swami Temple and
Ors., (1996) 3 SCC 52 that since the Letters Patent Appeal in the
furtherance of the writ jurisdiction and as such the issuance of
limitation will not be attracted save and except the principle of latches
to be seen while filing the petition for restoration of in L.P.A. No.65
of 2010 reference of the relevant para in the judgment which reads as
under.
"2. ... A letters patent appeal, as permitted under the Letters Patent, is
normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a
Court of Correction, corrects its own orders in execise of the same jurisdiction as
was vested in the Single Bench. ..."
7. This Court in order to assess as to whether any delay and
latches has been committed in filing the instant Letter Patent Appeal
and on that point it has been argued by referring the averment made in
the instant Interlocutory application that the appellant was pursuing
the appeal with all diligence but due to the reason of the learned
counsel who has represented the appellant since has been ill due to the
major health issues and hence, there was no appearance. In
consequence, thereof, the appeal has been dismissed for non-
prosecution.
8. The same was not been communicated from the office of the
learned counsel. It has further been submitted that when the file of the
appellant has been handed over to the panel counsel who upon enquiry
learnt that the instant letter patent appeal was dismissed for non-
prosecution on 22.03.2018.
9. Thereafter, an opinion was given to file restoration
application on 12.09.2018 and immediately, thereafter, on 11.10.2018
instant miscellaneous petition has been filed.
10. The principle of delay and latches which is to be considered
by this Court in exercising the power under Article 226 of the
Constitution of India is to assess the conduct of the litigant concerned
in pursuing or approaching the Court within the reasonable period so
as to the forum of Court of equity may not be misused. Further Court
of equity has not meant for both the litigants. If the litigants is not
approaching the Court of law within a reasonable period then such
litigant is not entitled for any relief from the Court of equity.
11. This Court considering the aforesaid principle and coming
back to the pleading made in the instant interlocutory application is of
the view that it is not available therein that from which the court may
come to the conclusion that the appellants have approached this Court
for restoration of the instant appeal during the reasonable period.
Further the reason has been explained i.e. the illness of the counsel
and non-communication of the said order as such this Court is of the
view that delay and latches have sufficiently been explained. Further,
this Court is also concern of the fact of the submission on behalf of the
learned counsel for the appellants that if the appeal will not be
restored to its original file the issue which is to be adjudicated by this
Court will remain undecided and that will cause irreparable loss in the
appeal.
12. Although this interlocutory application has been filed under
Section (5) of the Limitation Act but taking into consideration the
schedule which we took under Section (5) of the Limitation Act is not
fit to be entertained.
13. Learned counsel appearing for the petitioner has submitted
that the same may be construed to with the instant application
explaining the delay and latches in filing the appeal.
14. Considering the aforesaid facts, this Court is of the view that
the instant interlocutory application needs to allowed. Accordingly,
the delay is condoned and IA No. 9887 of 2018 is allowed.
15. The instant Civil Miscellaneous Petition has been filed for
restoration of L.P.A. No. 65 of 2010. The reasons for non-appearance
of the learned counsel who was representing the appellant has been
shown to be his acute illness and due to the aforesaid reason, the
learned counsel has not represented the appellant on the day when the
case was listed i.e. 22.03.2018. In consequence thereof, the aforesaid
instant letter patent appeal, L.P.A. No. 65 of 2010 has been dismissed
for non-prosecution.
16. This Court considering the fact and reasons assigned in the
instant Civil Miscellaneous Petition and also taking into consideration
the fact that if the instant letter patent appeal will not be allowed to
restore then the petitioner will suffer irreparable loss for the reason
that the issue is the subject matter of the instant preferred appeal will
remain undecided.
17. Accordingly, we are of the view that the instant Civil
Miscellaneous Appeal is fit to be allowed. Accordingly, allowed.
18. The L.P.A. No. 65 of 2010 is restored to its original file.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
Rajnish/
