IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Recall / Restoration App. 374 / 09 Delay Condonation App. 4097 / 09 In First Appeal No. 40 of 2005 Shakeel Ahmad and others ...…………. Applicants / Appellants Versus Jameel Ahmad and others ...…………Defendants / Respondents Mr. S.C. Bhatt, Advocate for the applicants / appellants. Mr. Sharad Sharma, Sr. Advocate assisted by Mrs. Indu Sharma, Advocate for the respondents. nt, J. Hon’ble Prafulla C. Pa This is Delay Condonation Application No. 4097 of 2009, for condonation of delay in moving the M.C.C. Application No. 374 of 2009, for recall of order dated 07.05.2008, passed by this Court, in First Appeal No. 40 of 2005. Heard. The delay condonation application is supported by affidavit of Sri Shakeel Ahamd (plaintiff / appellant). 2 The delay condonation application is allowed. The delay is condoned. Also, heard on Recall / Restoration Application M.C.C. No. 374 of 2009, whereby the appellants / applicants have sought recall of the order dated 07.05.2008. The order sought to be recalled, reads as under: “Shri T.C. Pandey, holding the brief of Shri I.P. Kohli, counsel for the appellant is present and has stated that he has no instruction in the first appeal. None is present on behalf of the respondents. In view of the aforesaid, first appeal is dismissed as not pressed.” Sd/- (Rajesh Tandon, J.) 07.05.2008 From the above order it is very clear that the appellants were represented in the Court through their counsel, who pleaded ‘no instructions’ and did not press the appeal. The present application has been moved after about one year of said order. Learned counsel for the appellants / applicants referred to the case of Malkiat Singh and another Vs. Joginder Singh and others; (1998) 2 Supreme Court Cases 206, and argued that if the counsel had pleaded ‘no instructions’, the court should have issued notices 3 to the party. I have gone through said case law, the order sought to be set aside in said case was passed in a suit where generally, parties appear in person along with the counsel. In the present case, the appellants were represented by their counsel, in the appeal. The order sheet of the appeal further shows that even in the earlier date i.e. 10.04.2008, no one appeared on behalf of the appellants, nor did anyone appear in the appeal on 28.03.2008. It is not the case of the applicants that on behalf of Sri I.P. Kohli, counsel for the appellants, statement was made against the instructions of the appellants. For the reasons as discussed above, the application is liable to be dismissed. The recall / restoration application is dismissed. (Prafulla C. Pant, J.) Dt. June 02, 2009. H. Negi