Unknown vs &
2021 Latest Caselaw 4747 Ori

                                S.A. No.1 of 1989
                                      &
                          I.A. Nos.44 & 45 of 2019


07.04.2021         This matter is taken up through Video Conferencing
             Mode.
                   The Petitioner, who was the respondent in the above-noted
             Second Appeal has filed this application under Order 41, Rule 21
             of the Code of Civil Procedure (for short 'the Code') for
             rehearing of the Second Appeal, which has been disposed of by
             the judgment dated 23.04.2018 in the absence of the Petitioner's
             Counsel.
                   This petition under Order 41, Rule 21 of the Code having
             been filed on 01.03.2019, after lapse of 248 days since the
             judgment,the Petitioner, therefore, has filed an application under
             Section 5 of the Limitation Act for condonation of delay.
                     Learned counsel for the Petitioner submits that the learned
             counsel for the Petitionerengaged in this appeal being ill could
             not appear on the dates fixed and sometime after the disposal of
             the Appeal, he died. It is submitted that when there was no
             representation from the side of the Petitioner for the reason
             beyond his care and control, this Court has decided the Second
             Appeal reversing the judgment and decree passed by the First
             Appellate Court and that thus need be recalled and the Second
             Appeal be heard afresh on merit by allowing the application
             under Order 41, Rule 21 of the Code by condoning the delay.
           Learned counsel for the Opposite Party No.1 opposing the
    move submits that the appeal was lying on board since 1989 and
    even prior to the hearing; number of opportunities had been
    provided for the Petitioner's Counsel to appear and take part in
    the hearing and even before accommodation had been given to
    him on his prayer. So, under the circumstance when the Court
    having heard the learned counsel for the Opposite Party No.1 has
    answered the substantial questions of law, after lapse of 248
    days, the move merits no consideration.
          Considering the submissions made and on going through
    the averments taken in the petition as wellas the objection further
    viewing developments on the dates fixed for hearing as those
    reveals from the order sheets, this Court finds no such sufficient
    cause behind the belated move of the Petitioner so as to say that
    she was prevented thereby to participate during the hearing of the
    Second Appeal.
          In that view of the matter, the I.As.stand dismissed.
          As the restrictions due to the COVID-19 situation are
    continuing, learned counsel for the parties may utilize a soft copy
    of this order available in the High Court's website or print out
    thereof at par with certified copy in the manner prescribed, vide
    Court's Notice No.4587 dated 25th March, 2020.



          .......................
                              D. Dash,J.

H