IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER 1. Raj.Housing Board & Anr. Vs. M/s.Anukampa Builders(P) Ltd. (DB Civil Restoration Application No.155/2008) In (DB. Civil Special Appeal (W) NO.622/1997) D. B. Civil Restoration Application under Order 41 Rule 19 read with Section 151 CPC for recalling/ rehearing the appeal. 2. Raj.Housing Board & Anr. Vs. M/s.Anukampa Builders(P) Ltd. (DB Civil Review Petition No.1794/2008 (Def.) In (DB. Civil Special Appeal (W) NO.622/1997) D. B. Civil Review Petition under Order 47 Rule 1 CPC read with 226 of the Constitution of India for review of the order dated 17-09-2007 passed in DB Civil Special Appeal No.622/1997. Date of Order: August 28, 2008. HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Dr. P.C.Jain with Mr. Manoj Sharma, for Rajasthan Housing Board. Mr. S.M.Mehta, Sr.Advocate assisted by Mr. R.S.Mehta, for M/s.Anukampa Builders (P) Ltd. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) In intra court appeal bearing No.622/1997 pending for the last eleven years, when counsel for the Rajasthan Housing Board (for short `RHB') did not appear at the time of hearing, the Court heard ex-parte arguments of the learned counsel for the appellant and allowed the appeal. Now the respondent RHB has filed two applications seeking review of the ex-parte order. 2. Contextual facts depict that M/s.Anukampa Builders Pvt. Ltd. filed DB Civil Special Appeal No.622/1997 impugning the order dated September 16, 1996 of learned Single Judge on December 7, 1996 against respondent RHB. On July 21, 1997 notices were issued to RHB. Notices were served and the matter was listed for admission on August 10, 1998. The matter was adjourned from time to time thereafter on May 7, 2003 the appeal was admitted and the Registry was directed to list the appeal for hearing. The appeal however could not be heard for a period of four years. Thereafter on July 6, 2007 following order was passed by this Court:- "Counsel for the appellant has been heard but the counsel for the respondent Shri Manoj Sharma, whose Vakalatnama is on the record of the file, has not appeared. List this appeal for dictation of order on 10th July, 2007." On July 10, 2007 Mr.SM Mehta, Sr.Advocate with Mr.RS Mehta, counsel for appellant appeared, but again Mr.Manoj Sharma counsel for RHB did not appear and the matter was adjourned for pronouncement of order on August 7, 2007. On August 7, 2007 since one of the member of Division Bench demitted the office, the matter was directed to be listed before regular Bench for hearing on August 23, 2007. The matter was thereafter adjourned to September 17, 2007. Again on September 17, 2007 nobody appeared on behalf of RHB and the special appeal was decided in absence of counsel for RHB thus:- "Being aggrieved by the order dated November 24, 1993 of the Rajashan Housing Board the appellant preferred writ petition before learned Single Judge assailing the said order whereby 25% of the amount deposited was forfeited. Since the instant matter is pending for last more then ten years and the instant matter is a case of frustration of contract, the appellant, filed additional affidavit and restricted its prayer to the refund of earnest money amounting to Rs.9,20,380/-. Having scanned the material on record we find that the amount Rs.9,20,380/- was deposited by the appellant with the Housing Board, the appellant is entitled to get the refund along with interest at the rate of 9% per annum. For these reasons, we dispose of instant appeal with the direction to Rajasthan Housing Board to refund the forfeited amount along with interest at the rate of 9% per annum within sixty days from the date of receipt of certified copy of this order." 3. The RHB seeks to recall this order on the ground that absence of Shri Manoj Sharma Advocate on September 17, 2007 was bonafide. 4. The reason for non-appearance of Shri Manoj Sharma, Advocate, incorporated in the application is as under:- "When the appeal was called on for hearing on 17-09-2007, the counsel for the respondent was not present due to the fact that he had taken the weekly cause list from internet in which name of the case was not appearing. Therefore, the counsel for the respondent had no notice of the case due to the above-mentioned fact. In the facts and circumstances, absence of the counsel for the respondent on 17.09.2007 was not deliberate or intentional." 5. Shri Manoj Sharma, Advocate placed before us the Weekly Cause List for September 17, 2007 to September 21, 2007 as well as the copy of the list drawn from internet. A perusal of the said lists goes to show as follows:- (i) In the weekly cause list published on Website http://causelists.nic.in/ temp/ 20788.html for 17-09-2007 to 21-09-2007 S.A.W. 622/1997 M/s.anukampa Builders Pvt. Ltd VS. RHB was listed at item No.3 and names of Advocates R.S.Mehta, Manoj Sharma, V.K.Joshi and R.N.Mathur were shown in the cause list. (ii) The Special Appeal No.622/1997 along with name of Manoj Sharma clearly appeared in the cause-list. (iii) Copy of the Cause-list drawn from the internet was incomplete. However, the cause list distributed by the Registry was received by Shri Manoj Sharma and in the said list Special Appeal No.622/1997 as well as name of Shri Manoj Sharma prominently appeared, which was noticed by Shri Manoj Sharma since he underlined the same. 6. In another Application No.155/2008 filed by RHB it is however contended that "the counsel for RHB has never informed till then about the decision of the case, might be on account of his failure to mark the case in the cause list or he being otherwise busy in another court when the case was called for hearing." 7. Learned counsel for RHB took us through the provisions contained in Order 41 Rule 21 of Code of Civil Procedure,1908, which reads as under:- "21.Re-hearing on application of respondent against whom ex parte decree made.- Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfied the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him." 8. Having heard the rival submissions and on a careful scrutiny of material on record, we find that on September 17, 2007 Shri Manoj Sharma Advocate was not prevented by sufficient cause from appearing when the appeal was called on for hearing. The appeal was pending for the last more than eleven years and because of non-appearance of Shri Manoj Sharma the appeal could not be disposed of on July 6, 2007 and July 10, 2007. The absence of Shri Manoj Sharma on September 17, 2007 was not bonafide. When he had knowledge that the appeal was listed at item No.3 it was incumbent on him to appear in the court. Since Shri Manoj Sharma was not prevented by sufficient cause from appearing when the appeal was called on for hearing, we see no ground to re-hear the appeal. Matters which are pending for many years cannot be allowed to prolong further. 9. For these reasons, we find no merit in the applications and the same stand dismissed without any order as to costs. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/