COURT FEES EXEMPTED BY NOTIFICATION NO. 9960/D-2870/XXI-B/C.G./05 AS SPECIFIED IN SCHEDULE I& IL OF THE COURT FEES ACT 1870.

IN THE HIGH COURT OF CHHATISGARH AT BILASPUR (C.G.)

M.C.C. NO. ..............................

Division Bench

(ARISING OUT OF ORDER DATED 23/01/2012 PASSED IN WRIT APPEAL NO. 112/2012)

<u>APPLICANT</u> APPELLANTS/

1.State of Chhattisgarh The Principal Secretary Department of Transport, D. K.S.Bhawan, Govt. of Chhattisgarh, Chattisgarh Secretariat (Mantralaya), Raipur.

2.Managing Director CIDC(Parivahan Vibhag) Shastri Chowk, Raipur (Chhattisgarh)

<u>VERSUS</u>

RESPONDENT

prosented by Shr

÷.

A.Hifazat Hussain S/o Shri Sidaquat Hussain Aged about 60 years Occupation – VRS Retd. Painter from Bilaspur Depot Division on 31.01.2003 R/o Karbala Chowk District Bilaspur C.G 495001

2. The M.P. Road Transport Corporation through its Managing Director, H.O. Habibganj, Bhopal (MP)462001

APPLICATION UNDER ORDER 41 RULE 19 FOR READMISSION OF APPEAL DISMMISED FOR DEFAULT OF CODE OF CIVIL PROCEDURE, 1908 OF WRIT APPEAL NO. 112/2012; STATE OF CHHATISGARH & ANOTHER VS HIFAZAT HUSSAIN & ANOTHER)

HIGH COURT OF CHHATTISGARH AT BILASPUR

e de la compañía de la compañía de la compañía de la compañía de la compañía de la compañía de la compañía de l

State of Chhattisgarh & another

DIVISION BENCH

CORAM: HON'BLE MR. ABHAY MANOHAR SAPRE &

HON'BLE MR. G. MINHAJUDDIN, JJ.

<u>M.C.C. NO. 1061 OF 2012</u>

APPLICANTS APPELLANTS

Versus

RESPONDENTS : Hifazat Hussain & another

APPLICATION UNDER ORDER 41 RULE 19 OF THE CODE OF CIVIL PROCEDURE 1908 FOR RESTORATION OF WRIT APPEAL NO.112 OF 2012

Present: Mr. A.K. Dubey, Advocate for the applicants.

ORDER (Oral) (Passed on 7-1-2013)

Per Abhay Manohar Sapre, J.

Heard on I.A. No.1/2012.

2. This is an application made by the applicants for condonation of delay in filing the restoration application arising out of order dated 23-1-2012 passed in Writ Appeal No.112/2012. It is barred by 209 days.

3. We have perused the contents of the application made by the applicants seeking condonation of delay in filing the main restoration application. Having gone through the contents of the application, we are satisfied that good and sufficient ground is pleaded in the application which constitutes a sufficient cause for condonation of delay in filing the application for restoration. It is not necessary to issue any notice of I.A. under consideration or of this appeal to the respondents because the appeal was dismissed in the absence of the respondents and at the time of inception.

4. In our opinion, condoning the delay advances the cause of justice. On the other hand, not condoning the delay would defeat the very purpose of claiming substantial justice.

5. Accordingly and in the light of the foregoing discussion, application for condonation of delay in filing the restoration application, made by the applicants, is hereby allowed.

6. Also heard on M.C.C.

7. This is an application made by the appellants of Writ Appeal No.112/2012 which was dismissed for non-compliance of order passed in the said appeal on 23-1-2012 which reads as under:-

"<u>23.01.2012</u>

Shri Syed Majid Ali, Advocate for the appellants. Heard.

On the request of learned counsel appearing for the appellants, three weeks time is granted to make good the default as pointed by the office, failing which the appeal shall stand dismissed for want of prosecution, without reference to the Court."

It is against this order of dismissal, the appellants of the said Writ Appeal have filed this restoration application for setting aside/recalling of the order dated 23-1-2012 and for claiming restoration of the Writ Appeal for its hearing on merits.

8. We have gone through the cause stated in the application for restoration of Writ Appeal No.112/2012. Having gone through the cause, we are satisfied with the cause pleaded in the application which is just, bona fide and genuine. It deserves to be and accordingly accepted as being a sufficient cause.

9. As a matter of fact, restoring the appeal to its original file for being heard on merits satisfy the principles of doing substantial justice to the parties because dismissal of any case in default always deprive a person from his right of hearing on merits. Indeed, this is what was held by the Supreme Court in one of its locus classic case reported in AIR 1955 SC 425 (Sangram Singh Vs. Election Tribunal, Kotah & another). We follow this principle laid down by the Supreme Court in Sangram Singh case (supra) for recalling of the impugned order.

10. Accordingly and in the light of foregoing discussion, the application made by the applicants (appellants in Writ Appeal No.112/2012) succeeds and is hereby allowed. Order dated 23-1-2012 passed in Writ Appeal No.112/2012 is hereby recalled.

11. As a result, Writ Appeal No. 112/2012 is restored to its original file for its hearing on merits in accordance with law. Office is directed to list the appeal before appropriate Bench as per roster.

12. A copy of this order be kept in the file of the case of Writ Appeal No.112/2012 for information and record.

13. Let the Writ Appeal No. 112/2012. be now listed for further orders before appropriate Bench as per roster.

Sd/- Abhay Manohar Sapre Judge

Sd/- G. Minhajuddin Judge