[Cites 1, Cited by 0]
Uttarakhand High Court
SA/36/2015 on 9 March, 2026
Office Notes,
reports, orders
or proceedings
SL.
Date or directions COURT'S OR JUDGES'S ORDERS
No
and Registrar's
order with
Signatures
SA No.36 of 2015
Hon'ble Siddhartha Sah, J.
Mr. Pawan Mishra, Advocate for the
appellant.
2. None is present for the respondent even
in the revised call and after due intimation
even through the online display board.
3. MCC No.3822 of 2022 is an application
for restoration under Order 41 Rule 19 of CPC
seeking to recall the order dated 21.02.2022
and restore the appeal. The said application
for readmission of appeal is delayed by 201
days. The Delay Condonation Application
bearing IA No.3823 of 2022 has been filed
seeking condonation of delay in filing the
application for readmission of appeal
mentioned as restoration application.
4. The said delay condonation application
is duly supported by an affidavit. In the
affidavit filed in support of the delay
condonation application, it has been stated
that vide order dated 21.02.2022, the
Hon'ble Court was pleased to dismiss the
appeal for want of prosecution, but this order
was not in the knowledge of deponent as
earlier counsel Mr. M.K. Goel, as is earlier
counsel, did not inform the deponent about
the dismissal of the appeal for want of
prosecution, because he was in impression
that another counsel has been appointed by
the deponent in the case.
5. That when in the second week of
September, 2022, the deponent contacted to
Mr. M.K. Goel, Advocate, to know about his
case, then on 15.09.2022, he applied for
certified copy of order dated 21.02.2022 and
after receiving the same on 22.09.2022, the
deponent was informed in the last week of
September, 2022, that his case was
dismissed for want of prosecution by the
Hon'ble Court vide its order dated
21.02.2022.
6. The Hon'ble Court was closed on
account of Dusshera holidays from
02.10.2022 to 09.10.2022 and, therefore,
after taking the entire file from his earlier
counsel Mr. M.K. Goel, Advocate, the
deponent came to Nainital and contacted to
Mr. Pawan Mishra, Advocate on 08.10.2022
and on the same day, the restoration
application, along with delay condonation
application, was prepared and now the same
is being filed before this Hon'ble Court
without any further delay.
7. There is about six and half months delay
in filing the restoration application in the
second appeal on the part of
defendant/appellant, which is not deliberate
and wilful and it was caused only on account
of unavoidable circumstances and as such the
same is liable to be condoned by this Hon'ble
Court.
8. IA No.3824 of 2025 is the miscellaneous
application filed on behalf of the
applicant/appellant seeking to hear the delay
condonation application as well as the
restoration application filed on behalf of the
appellant. The said application bearing IA
No.3824 of 2025 is duly supported by an
affidavit. In the said affidavit, it has been
stated that the defect as pointed out by the
office concerned is that the power of attorney
was not filed along with the restoration
application. It is stated that the same is filed
with this affidavit. The second defect as
pointed out by the office concerned that is
the vakalatnama which was filed on behalf of
the appellant to which there was no objection
from the previous counsel.
9. The learned counsel for the appellant
has pointed out that fresh vakalatnama with
NOC of the previous counsel has been placed
on record. The vakalatnama is at page
no.186 of the file.
10. In such view of the matter, IA No.3824
of 2025 is being disposed of with the
observation that the defects as pointed out
by the office concerned deserve to be
overlooked.
11. IA No.3823 of 2022, since no objections
have been filed by the respondents and there
is no one to oppose the said application. The
reason so assigned for the delay in preferring
the application for readmission of appeal is
sufficient and the delay condonation
application is allowed. The delay that has
chanced in filing the application for
readmission of appeal is hereby condoned.
IA No.3823 of 2022 is disposed of
accordingly.
12. MCC No.3822 of 2022 is an application
for readmission of appeal under Order 41
Rule 19 of CPC. The said application is duly
supported by an affidavit in which it has been
stated that the above mentioned appeal
came up for hearing before the Hon'ble Court
on 21.02.2022, but since Mr. M.K. Goyal,
counsel for the defendant/appellant was in
impression that another counsel has been
appointed by the deponent in this case,
therefore, he could not appear on behalf of
the defendant/appellant when the case was
called out. On account of non appearance of
Mr. M.K. Goyal, Advocate, the appeal of the
defendant was dismissed for want of
prosecution vide order dated 21.02.2022.
The cause shown for dismissal of the appeal
is sufficient. The application for readmission
of appeal (MCC No.3822 of 2022) is allowed.
The order dated 21.02.2022 is hereby
recalled and the second appeal is restored to
its original number.
13. List this case on 21.05.2026 for further
consideration.
14. Meanwhile, trial court record be
summoned.
[
(Siddhartha Sah, J.)
09.03.2026
Ravi
