Uttarakhand High Court
Rashid Hussain vs Munavvar Khand And Others on 10 March, 2021
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Delay Condonation Application No. 8162 of 2020
and
Restoration Application No. 467 of 2020
In
Appeal from Order No. 293 of 2008
Rashid Hussain ......... Appellant
Vs.
Munavvar Khand and others .......Respondents
Present:
Mr. Arif Khan, Advocate holding brief of Mr. Z.U.Siddiqui, Advocate for the
appellant.
Mr. K.K.Shah, Advocate for the respondents.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
Appellant is intended to challenge the judgment and order dated
04.03.2008 passed in M.A.C.P No. 88 of 2007 Rashid Hussain vs. Munavvar
Khan and others by the Motor Accident Claims Tribunal, Nainital. He
preferred the instant appeal along with the delay condonation application. The
appeal was preferred in the year 2008. It was taken up for hearing on
01.10.2008 when the appellant was not represented, therefore, the delay
condonation application was dismissed for the want of prosecution and
consequent upon it, the appeal was also dismissed.
2. On 07.10.2020, after completion of 12 years, now a delay condonation
application alongwith restoration application has been moved for setting aside
the order dated 01.10.2010 and restoring the appeal to its number.
3. Heard learned counsel for the parties and perused the record.
4. According to the application for restoration, the appeal was dismissed
due to non-appearance of the counsel for the appellant. The appellant is
disable and not in good health condition; in the month of April, 2011, the
appellant contacted the counsel to inquire about the appeal. The appellant was
advised to visit the office of his counsel, but the file could not be traced.
Thereafter when the file was found the appellant took the file in the month of
December 2011 from the counsel, who was dealing with the case earlier, so as
to engage some other lawyer. Again the appellant approached the same
counsel in the month of January 2019. It is thereafter, the application was
filed in the month of October, 2020.
5. Objections have been filed on behalf of the respondents, inter alia, on
the grounds that the delay has not been explained; the facts reveal gross
negligence and lethargy which cannot be condoned.
6. Learned counsel for the appellant would submit that earlier the file was
misplaced in the office of the counsel; the appellant is a poor, physically
challenged person; the appeal was dismissed in non-appearance of the counsel
for the appellant and it makes out a case for condonation of delay.
7. On behalf of the respondents, learned counsel would very vehemently
objected to it. According to him, the grounds are not sufficient to condone the
delay of more than 12 years. According to the learned counsel for the
respondents, the learned counsel who has filed affidavit in support of delay
condonation application and the appellant reside in the same location in
Haldwani and there is no reason to condone the delay.
8. Law encourages decision on merits. The disposal of a case in non-
prosecution is not much favoured. Perhaps this is one of the reasons that the
court always takes a much lenient and practical approach, while considering
the delay condonation application. The Court never expects a litigant to
explain each day or each hour's delay in filing applications. But, there is a
limit. Liberal approach cannot be stretched to an extent that the limitation may
become only something to be read in the books and not in practice.
9. Here, in the instant case, on 01.10.2008, the delay condonation
application filed by the appellant was dismissed and consequently, the appeal
was dismissed.
10. For the complete 12 years, there was a silence. On 07.10.2020, the
instant applications have been filed. The grounds which have been taken in
the delay condonation application are, in fact, no grounds as it states that after
the dismissal of the appeal in the year 2008, the appellant approached his
counsel in the year 2011 and takes away the file. Thereafter, he approached
the same counsel again in the year 2019, in the month of January. Nothing
happens in the year 2019 also and as stated the applications for delay
condonation and restoration are filed in the month of October 2020. It is most
inordinate delay without any cause, what to say good or sufficient. There is no
cause or reason for this inordinate delay, therefore, this Court is of the
considered opinion that there is no reason to condone the delay in filing
restoration application.
11. Accordingly, the delay condonation application and consequent upon it,
the restoration application, deserve to be dismissed.
12. The delay condonation application no. 8162 of 2020 is dismissed.
Consequent to it, the restoration application no. 467 of 2020 is also dismissed.
(Ravindra Maithani, J.)
10.03.2021
Nahid
