Banwari Lal v. State of Uttarakhand

“Heard Sr. A.K. Joshi, learned counsel for the petitioner. Issue notice to the respondent no.2. They may file counter affidavit within three weeks. Put up thereafter. Till then the status-quo shall be maintained.”

#4. While entertaining the Writ Petition and granting the interim order, the Court had issued notices to the respondent No. 2. The ordersheet shows that in the Writ Petition, after filing of the counter affidavit by respondent No.2, the Writ Petition remained pending till it was dismissed for want of prosecution on 9th November, 2011. It is only on 26th June, 2019, i.e. after about more than eight years, the petitioner had preferred the Restoration Application No. 575 of 2019, along with Delay Condonation Application No. 8668 of 2019, which is reported that there is inordinate delay of 2755 days in preferring the Restoration Application.

#5. In order to seek, the Recall of the order dated 9th November, 2011, dismissing the Writ Petition for want of prosecution, the petitioner had filed the present Restoration Application, wherein, in the Restoration Application, the reason which has been assigned for seeking recall of the order is that the absence of the petitioner on the assigned date was on account of the fact that the Clerk of the Counsel was unable to mark the case and, consequently, the Writ Petition was dismissed for want of prosecution.

#6. The averments made in para 3 has been sworn on the basis of records in the affidavit. Not marking the cause list may be a human error which may at times chanced inadvertently in certain circumstances, which could be taken as to be a ground for seeking 3 recall of the order dismissing the proceedings for want of prosecution in the light of the provisions contained under Order 9 Rule 3 of the Rules contained under the CPC. The principles of which are made applicable in the writ jurisdiction. For the purposes of restoring the suit in the circumstances contemplated under Rule 3 of Order 9 of the C.P.C., the petitioner has been given a liberty to file restoration under Rule 4 of Order 9. Rule 4 uses the word that the petitioner will have to give a sufficient cause for the failure to appear when the case was called for hearing. Though sufficient cause in its interpretation while considering the recall application may not be considered as to be a good cause for recalling the order but, this Court is of the view that in those cases, where the restoration has been sought at a highly belated stage with an inordinate delay and that too on a premise that the Clerk of the counsel failed to mark the cause list, it could be a ground to recall the order, but, in such an eventuality, to justify that the absence which was attributed due to the Clerk’s mistakes, there has had to be material on record to be brought by the counsel by way of filing the cause list of that particular date when the case was dismissed for want of prosecution in order to substantiate his argument that the particular case sought to be restored was missed to be marked by the Clerk and that the Writ Petition was dismissed due to non-marking of the cause list by his counsel.

#7. This Court is of the view that this stringent attitude has to be adhered to in principle so as to avoid frivolous absence and frivolous filing of restoration application on the ground that the Clerk has failed to mark the cause list. For that purpose, the cause of the particular day of his office has to be placed on record to satisfactorily prove the cause of absence on that date.

#8. Since, in the case, at hand, there happens to be an inordinate delay of 2755 days, and after having considered the delay Condonation application and not being satisfied with the explanation extended to it, coupled with the fact that the reason for absence being 4 the mistake of the Clerk of not marking the cause list, the same ought not to be considered until and unless, the non-marking of the cause list is proved by placing on record the cause list of that particular date to be the cause list of counsel’s office in support of the pleadings.

#9. Since, in the present case, after the dismissal of the Writ Petition and till the filing of the restoration application, there has been delay of more than 2755 days, this reasons has not been satisfactory coupled with the fact that the cause list has not been annexed to substantiate the pleading pertaining to para 3, this Court is not inclined to consider the delay Condonation application as well as consequently the restoration application.

#10. One another aspect which is to be considered in considering such type of applications for restoration, where the reason assigned happens to be the mistake of the Clerk in marking the cause list, if it is filed at a highly belated stage without annexing the copy of the cause list to support the contention, rationally, it is practically impossible for the human being to remember with precision the fact as to whether on the date when the case was listed, it was marked or it was not marked by the Clerk until and unless the cause list for the said date belonging to the said Chamber is placed on record.

#11. For the aforesaid reasons, both Delay Condonation Application and Restoration Application deserve to be rejected and the same are rejected. Shiv (Sharad Kumar Sharma, J.)

03.07.2019