(Per : HONOURABLE MR.JUSTICE R.M.CHHAYA)
1. Rule.
Mr. Himanshu Patel, learned AGP waives service of rule for the opponents. With consent of the parties the application is taken up for final hearing forthwith.
2. By way of this application the applicant-original appellant has prayed for restoration of the main matter being Letters Patent Appeal No.1373 of 2006 which came to be dismissed for non-prosecution as the learned advocate for the applicant could not remain present for hearing vide order dated 28.1.2011.
3. It is specifically averred in the application that the advocate for the applicant was under the bonafide impression that there were as many as 69 matters in the first board and therefore, the hearing of the present appeal would take some time. It is averred that because of this bonafide impression the advocate for the applicant could not remain present when the matter was called out. It was pointed out that when the matter was actually called out, the learned advocate for the appellant was attending the another Court and therefore, could not remain present which has resulted into dismissal of the appeal for want of non-prosecution.
4. Mr.
Patel, learned AGP for the opponents candidly submitted that the facts stated in the application cannot be controverted.
5. Considering the submissions made as well as the averments made in the application, it appears that the learned advocate for the applicant could not remain present because of the reasons stated in the application and it transpires that there was no deliberate inaction on the part of the learned advocate for the applicant and hence, the application deserves to be accepted.
6. Resultantly the application is allowed. The main matter i.e. Letters Patent Appeal No.1373 of 2006 is restored to its file. Rule is made absolute with no order as to cost.
[K.M.THAKER, J.] [R.M.CHHAYA, J.] mrpandya Top