By this application, the applicant seeks condonation of delay of 279 days caused in filing application for restoration of Miscellaneous Civil Application No.277 of 2011 in Second Appeal (Stamp) No.225 of 2008.
Heard Mr. B. M. Mangukiya, learned advocate for the applicant who has invited attention to the averments made in the memorandum of application, to submit that the delay in filing the present application has been sufficiently explained. It was, accordingly, urged that there being no deliberate negligence on the part of the applicant, the delay deserves to be condoned.
On the other hand, Mr. Amit Patel, learned advocate for the respondent has opposed the application and has placed reliance upon the averments made in the affidavit in-reply filed by the respondent. It was submitted that no valid and bona fide reason has been given as to the inordinate delay in removing the office objections, and that the entire burden is sought to be thrown on the clerk of the learned advocate. It was submitted that in the circumstances, no case is made out for condoning the delay caused in filing the application for restoration.
This Court has considered the submissions advanced by the learned advocates for the respective parties and has also perused the averments made in the memorandum of application as well as the affidavit in-reply filed on behalf of the respondent.
From the averments made in the memorandum of application, it is apparent that the office objections could not be removed on account of lack of communication by the clerk of the learned advocate in this regard. It is common knowledge that insofar as the removal of office objections is concerned, the same is normally attended by the clerk of the learned advocate who calls for necessary information from the concerned party. In the absence of any information being called for from the applicant, the applicant would not be in a position to know that any office objection was remaining to be removed. In the circumstances, the default in non-removal of the office objection within the stipulated time limit and in filing the restoration application, cannot be laid at the door of the applicant. In the circumstances, in absence of any default on the part of the applicant, he cannot be visited with the consequences of dismissal of his appeal and non-restoration thereof.
For the foregoing reasons, the application is allowed. The delay of 279 days caused in filing application for restoration of Miscellaneous Civil Application No.277 of 2011 in Second Appeal (Stamp) No.225 of 2008, is hereby condoned. Rule is made absolute accordingly, with no order as to costs.
[HARSHA DEVANI, J.] parmar* Top