Lokenath Foundation Vs. Sailendra Prasad Bhattacharjee and ors. - Court Judgment

Excerpt:
the court : ap no.370 of 2008 was dismissed for default on 12th august, 2008. ga no.2577 of 2009 was filed to set aside and/or recall that order. that was also dismissed for default on 13th january, 2010. this application has been filed in june, 2010 to set aside and/or recall both the orders and to restore the original ap no.370 of 2008 to the file. this application is moved in the presence of the learned counsel for the respondents. i find that the exclusive ground is the ground of illness of the lawyer for the petitioner. i tried to inquire from the respondents counsel as to whether the petitioner has derived any advantage out of such dismissal. no such advantage is apparent. since it is the ground of the lawyer, i accept that without making any further inquiry. moreover, the litigant should not suffer. in the circumstances, the orders dated 12th august, 2008 and 13th january, 2010 passed in ap no.370 of 2008 and ga no.2577 of 2009 respectively are set aside and/or recalled, by condoning delay. ga no.2577 of 2009 by treating it in the days list as well as ga no.2118 of 2010 being the present ga are allowed. however, the petitioner as to pay for the wasted appearance of the respondents. such costs are assessed at 300 gms. on such condition, this order is passed. such cost has to be paid within a week from date. liberty to mention in case of non compliance. ap no.370 of 2008 is restored to its original file and number and will appear in the list as new motion from 16th august, 2010. all parties concerned are to act on a signed photo copy of this order on the usual undertakings.

Judgment:
The Court : AP No.370 of 2008 was dismissed for default on 12th August, 2008. GA NO.2577 of 2009 was filed to set aside and/or recall that order. That was also dismissed for default on 13th January, 2010. This application has been filed in June, 2010 to set aside and/or recall both the orders and to restore the original AP No.370 of 2008 to the file.

This application is moved in the presence of the learned counsel for the respondents. I find that the exclusive ground is the ground of illness of the lawyer for the petitioner. I tried to inquire from the respondents counsel as to whether the petitioner has derived any advantage out of such dismissal.

No such advantage is apparent. Since it is the ground of the lawyer, I accept that without making any further inquiry. Moreover, the litigant should not suffer.

In the circumstances, the orders dated 12th August, 2008 and 13th January, 2010 passed in AP No.370 of 2008 and GA No.2577 of 2009 respectively are set aside and/or recalled, by condoning delay. GA No.2577 of 2009 by treating it in the days list as well as GA NO.2118 of 2010 being the present GA are allowed.

However, the petitioner as to pay for the wasted appearance of the respondents. Such costs are assessed at 300 GMs. On such condition, this order is passed. Such cost has to be paid within a week from date. Liberty to mention in case of non compliance. AP No.370 of 2008 is restored to its original file and number and will appear in the list as New Motion from 16th August, 2010.

All parties concerned are to act on a signed photo copy of this order on the usual undertakings.