At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE M.F. SALDANHA & THE HONOURABLE MR. JUSTICE M.L. PENDSE
For the Appearing Parties: E.P.Barucha, K.S.Cooper, Matubhai Jamiatram, S.D.Parekh, Advocates.
M.L. PENDSE, J.
( 1 ) THIS is an application filed by the petitioners for setting aside order dated August 23, 1990 dismissing Writ Petition No. 1499 of 1981 on the ground that the petitioners and their Attorneys remained absent on more than one occasion. The application for setting aside the order is filed after one year and 129 days and there is also a prayer to condone the delay in filing the application. In support of the application it is claimed that the petitioners and their Attorneys could not
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emain present because the clerk of the Attorneys did not inform the fact of the matter being on the board. The petitioners claim that they had engaged counsel to attend to the matter, but in absence of instructions that the matter is on the board, the counsel could not attend. Shri cooper, learned counsel appearing on behalf of the petitioners relied upon three decisions of the supreme Court reported in 1981 (2) S. C. Cases 788 (Rafiq and Another v. Munshilal and Anr.), 1981 (4) S. C. Cases 574 (Goswami Krishna Murarilal Sharma v. Dhan Prakash and Others) and a. I. R. 1984 S. C. 41 (Smt. Lachi Tewari and Ors. v. Director of Land Records and Ors.) and the decision of Delhi High Court reported in A. I. R. 1991 Delhi 194 (Bank of India v. M/s. Mehta brothers and Ors.). We are not inclined too accede to the submission of the learned counsel and we propose to reject the application on the ground of delay in filing the application for setting aside the order as well as on merits.( 2 ) THE petition was filed in the year 1981 and the petition was admitted and interim relief was secured on May 21, 1981. According to the petitioners the petition was placed for hearing in the month of August 1989 but did not reach hearing. In June 1990 our Bench was specialty constituted to hear old petitions and the petitions of the year 1981 as also of earlier years were posted before us for final hearing. The petitioners accept that the petition was listed at Serial No. 35 on the daily board in the week commencing from August 13, 1990. The petition was then posted at Serial No. 8 on the weekly board commencing from August 20, 1990. The petition was called out before us on more than one occasion and on both the occasions the petitioners and their Attorneys were absent. The excuse now given is that the clerk of the Attorneys did not notice the matter on board. We are not prepared to accept the claim of the petitioners as well as the affidavit filed by the clerk in this respect. It is impossible to believe that the Attorneys of this court were not aware that the old petitions were posted before us from June 1990 onwards when the Courts reopened after Summer Vacation. The old petitions were heard by this Bench from June 1990 onwards and though the petition was placed before us on two consecutive weeks and was on daily board on every day, still nobody attended the matter. It is difficult in these circumstances to accede to the submission that the clerk did not notice the matter. In case the clerk was so negligent in attending to the duties, then the Attorneys must thank themselves. ( 3 ) THERE is also another aspect of the matter which cannot be overlooked. Though the petition was dismissed on August 23, 1990, no inquiries whatsoever were made by the Attorneys for a considerable length of time. It was expected of a responsible clerk and the Attorneys to inquire as to what has happened to the old matters and present petition, but it does not transpire as to what steps were taken after August 1990 for a considerable length of time. In these circumstances we are not inclined to condone the delay or to grant the application, in spit of submission of Shri Cooper that on merits the petitioners have an excellent case. Shri Cooper also pointed out that the petitioners had renewed the bank guarantee furnished in accordance with the interim order from time to time and till June 1992 and that indicates that the petitioners were not aware of the disposal of the petition. The guarantee was renewed last on June 27, 1989, while the petition was dismissed on August 23, 1990. The fact that the petitioners were not aware does not absolve the Attorneys of the responsibility to keep the petitioners informed about the progress of the matter. ( 4 ) SHRI Cooper submitted that the petitioners should not be visited with the consequences for the default of their Attorneys or their clerks. The submission does not appeal to us. It is not fair for the petitioners, who is a Public Limited Company and who had engaged experienced Attorneys, to claim that the provisions of Order IX of the Code of Civil Procedure should be ignored and the matter should be restored as a matter of course on the ground that the petitioners would suffer the consequences. If these arguments are to be accepted, then in every matter whatever may be the circumstances, the Court would be bound to restore the matter. We decline to accede to such submission. In our judgment, no case whatsoever is made out for condonation of delay in making an application and also for setting aside the order of dismissal. ( 5 ) ACCORDINGLY, Civil Application fails and is rejected.