TaxTMI 
TaxTMI 
2022 (4) TMI 1422
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....or the respondent No. 1. Notice is duly served upon the respondent No. 2. 4. The learned advocate for the petitioner, with all vehemence at his command, submitted that the impugned common judgment and order passed by the learned City Civil Judge is illegal, perverse and arbitrary inasmuch as the restoration applications in question were filed beyond time limit and on totally misstatement and false allegations. He submitted that only because the respondent No. 1 is a government undertaking, it does not deserve undue leverage more particularly, when there was inordinate delay and false statements. 4.1 The learned advocate for the petitioner further submitted that the learned trial Court ought to have considered the fact that the petitioner, through arbitration process, got the award in the year 2003 and faced multiple litigation, however, still the petitioner has not availed the fruits of such litigation. He submitted that the petitioner company had successfully completed the work and got the award, however, due to such litigation, the petitioner is not receiving the legitimate dues and the amount is, now, ordered to be invested in fixed deposit by the impugned order. 4.2 Mo....
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.... such outcome and accordingly, it is default on the part of the learned advocate representing the respondent No. 1 before the learned trial Court. He submitted that eventually, immediately on coming to know, the respondent No. 1 filed the restoration applications, which came to be allowed by the learned City Civil Judge. He submitted that as a condition, precedent full decretal amount was deposited by the respondent No. 1. 5.1 The learned advocate for the respondent No. 1 submitted that the learned trial Court has rightly come to the conclusion that ordinarily, a litigant does not stand to benefit by lodging a late appeal or by remaining absent. Not only that, but substantial justice is required to be rendered to the parties and not to dismiss the matter on technical considerations. Accordingly, it is requested that, these petitions, being bereft of any merits, deserve to be dismissed. 5.2 In support, the learned advocate for the respondent No. 1 has relied upon following decisions: i) Bhikhabhai Rasulbhai Chothiya v. Decd. Gandhi Gulabchand Chandulal, 2009 (0) GLHEL-HC 222047; ii) Shah Bhikhabhai Chimanlal and Another v. Shakariben Babubhai Prajapati, 2007 ....
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.....2016, which came to be withdrawn unconditionally in view of pendency of the restoration applications by virtue of the orders dated 17.04.2017; x) in the said civil revision application, delay condonation applications were also filed, praying for to condone the delay of 1074 days; x) on 18.04.2018, the said restoration applications came to be allowed. 6.2 Now, if the prescribed period of limitation for filing the restoration application is taken into consideration, the relevant provision of the Limitation Act, 1963 read as under: 122. To restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. Thirty days The date of dismissal 6.3 Thus, the prescribed period of limitation for filing a restoration application is 30 days from the date of dismissal. It is not in dispute that the respondent No. 1 was served with the notice of the execution petitions on 20.08.2015 and also appeared through an advocate. Thereafter, the said execution petitions also came to be adjourned from time to time. Meaning thereby, ....
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....that a litigant cannot be allowed to suffer on account of negligence of the Advocate and in the present case, the Advocate had not informed the present applicant as to the listing of his matter and therefore, in absence of the applicant as well as his Advocate, the original proceedings came to be dismissed by the Court, and when it came to the knowledge of the applicant that the proceedings were ordered to stand dismissed for default of the applicant, he approached the Court for restoration thereof, and that too, within the period of limitation, and in such circumstances, the present application are required to be allowed, and the original proceedings being CMAs Nos. 79/2004 and 78/2004 are required to be restored to file." xxx 18) If the judgment cited by Shri Keshwani, is perused, it also shows that the words "sufficient cause" receives a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the applicant. In such circumstances, when the applicant has not initiated the legal remedy within the stipulated time and from the record it seems that the applicant is negligent and has remained ina....