Uttarakhand High Court
Pratap Singh vs Nagar Palika Parishad And Another on 6 May, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
2014:UHC:3604
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Second Appeal No. 702 of 2000
Pratap Singh. ..................... Appellant.
Versus
Nagar Palika Parishad and Another.
...............Respondents.
Present:
Mr. Siddhartha Singh, learned counsel for the appellant.
Mr. Dharmendra Barthwal, learned counsel holding the brief of Mr. D.S. Patni, learned
counsel for the respondent.
Hon'ble Mr. Justice Rakesh Thapliyal, J.
1. The instant second appeal was dismissed for non-
prosecution in the absence of counsel for both the parties on
22.05.2014. The restoration application i.e. MCC 6427 of 2025
along with delay condonation application i.e. IA 6428 of 2025 has
been moved on the ground that the instant appeal was admitted
on 07.09.2000 before the creation of the State by the High Court
Judicature at Allahabad and after creation of the State the same
was transferred and renumbered as Second Appeal No. 1192 of
2001.
2. After transfer of the case to this court the notices were
issued to the parties, which was served on 17.10.2006 and on
23.05.2008 and 24.06.2008 the respondents put their appearance
through the counsel; however, the second appeal was dismissed
for non-prosecution on 13.04.2010, subsequently the same was
restored on 06.08.2010 and the LRs of the deceased appellant were
also substituted due to the death of the sole appellant on
12.03.2010. Thereafter the instant second appeal was again
dismissed for non-prosecution on 29.04.2011 and the same was
further restored on 11.05.2011, but on 22.09.2011 the respondent
2014:UHC:3604
was absent and on 30.11.2011 again the counsel for both the
parties were not present and repeatedly the adjournment was
sought on 22.08.2012 and thereafter on 29.08.2012 the second
appeal was again dismissed in default, since, none of the counsel
for the parties were present and the second appeal was again
restored on 03.10.2012, but thereafter again on 17.10.2012 the
adjournment was sought and subsequently on 21.11.2012 the
second appeal was heard partly, but thereafter again on 27.02.2013
the adjournment was sought on behalf of the respondent and
subsequently on 22.05.2014 again due to non presence of counsel
for both the parties the appeal was again dismissed for non-
prosecution.
3. In paragraph 18 of the restoration application it is
contended that the appellant have no knowledge about the
dismissal of the instant second appeal nor counsel has informed to
the parties. Thereafter, on different issue WPMS No. 803 of 2025
was filed against the judgment passed by the Board of Revenue in
which the Nagar Palika was one of the party and thereafter the
appellant came to know about the dismissal of the second appeal
for want of prosecution. There is a delay of 3241 days in filing the
restoration application and Mr. Dharmendra Barthwal seriously
oppose the same by stating that it is highly belated and the
reasons as given cannot be accepted since on three to four
occasions earlier the instant second appeal was dismissed in
default.
4. Be that as it may, as it appears from the order by which the
instant appeal was dismissed in default, surprisingly the counsel
for the respondent was also not present. The question is if both
the counsel for the parties were not present at the time when the
appeal was dismissed for want of prosecution then in such an
2014:UHC:3604
eventuality, can the counsel for the respondent raised the
objection. In the opinion of this court since the counsel for the
respondent was also not present at the time when the appeal was
dismissed in default, then in such a situation the counsel for the
respondent have no right to raise any such objection.
5. So far as the delay is concerned though not well explained
and furthermore this appeal was dismissed three to four times for
want of prosecution, but since the counsel for the respondent was
also not present when the appeal was dismissed for want of
prosecution then in the interest of justice the subject matter of the
instant appeal has to be decided on its own merit, particularly
when there is a non-concurrent finding of both the courts below
and this is an admitted appeal.
6. Apart from this, admittedly, the delay in preferring the
restoration application is an inordinate delay and in such an
eventuality keeping in view that counsel for both the parties were
not present at the time when the second appeal was dismissed,
therefore, the appeal can be restored only subject to this condition
if the appellant shall deposit some exemplary cost keeping in
view of the fact that three to four times earlier the appeal was
dismissed in default.
7. In such an eventuality, the delay condonation application as
well as restoration is allowed and the instant second appeal is
restored to its original number subject to this condition that the
appellant shall deposit a cost of Rs. 50,000/- in the High
Advocates' Welfare Fund within a period of two weeks from
today.
8. In addition to this, this court also considering this aspect
that on the date when the appeal was dismissed in default the
2014:UHC:3604
counsel for the respondent was also not present. Apart from this,
on perusal of the order sheet it reveals that the respondent also
sought adjournment on several occassions and most importantly
on the date when the appeal was dismissed in default the counsel
for respondents was also not present, therefore, in such an
eventuality, the respondents are also directed to pay a cost of Rs.
25,000/- in the same head within the same period.
9. Registry is directed to make endorsement in the order sheet
for compliance of this order.
10. List this matter after three weeks for final hearing.
(Rakesh Thapliyal, J.)
06.05.2025
PR
