RSA No.1730 of 2002 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1730 of 2002 (O&M) Date of decision: 27.9.2011 Krishni Devi and others ......Appellant(s) Versus Hari Chand and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Madan Lal Gupta, Advocate for the appellant(s). Mr. Harkesh Manuja, Advocate for the respondents. Rakesh Kumar Garg, J. (Oral) This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for possession of the suit land by way of specific performance of the agreement in question was decreed. This appeal pertains to the year 2002 and remained in Kacha Peshi. On 17.3.2009, none appeared for the appellants and this appeal was dismissed in default. The aforesaid order reads thus: “The present appeal is in Kachha peshi since August 2002. Even on 24.2.2009, 28.1.2009, 22.12.2008 and 18.11.2008, no one was present on behalf of the appellants. Dismissed in default.” CM No.7606-C of 2011 has been filed in this Court for recalling of the aforesaid order dated 17.3.2009 and to restore the appeal at its original number. Along with this application, an application i.e. CM RSA No.1730 of 2002 (O&M) 2 No.7605-C of 2011 for condonation of delay of 778 days in filing the restoration application has also been filed. The averments made in the aforesaid application reads thus: “1. That the above noted RSA was pending before this Hon'ble High Court and the same was ordered to be dismissed in default vide order dated 17.3.2009. 2. That the appellants/applicants had engaged the counsel in this appeal and who could not appear on the various dates and ultimately the appeal was ordered to be dismissed in default. In fact, the appeal was pending before the Hon'ble High Court and the respondents filed an execution petition before the Ld. Trial Court. The respondents were threatening to the appellants that they will take the possession of the land. The appellants contacted their earlier lawyer who had not given any satisfactory reply, immediately the case file was inspected by their new counsel and came to know about the order passed by the Hon'ble High Court on 17.3.2009. There is a bonafide mistake on the part of the appellants/applicants. If the order came into the notice of the appellants earlier then the application would have been fled immediately, but the order came into notice after inspection. 3. That when the case file was inspected and it came into the notice of the appellants that the appeal was dismissed in default on 17.3.2009, so due to the aforesaid reason there is a delay of 778 days in filing the application which is bona fide one and if this fact came into the notice earlier the application would have been filed immediately, so the delay is bona fide which may kindly be condoned.” A perusal of the aforesaid averments would show that the appellants had engaged another lawyer to pursue this appeal and he was also appearing in the appeal. However, he did not appear on many dates RSA No.1730 of 2002 (O&M) 3 and ultimately, the aforesaid order was passed dismissing the appeal in default. Though it has been mentioned in the said application that they were not in the knowledge of the aforesaid order and have come to know only when the execution petition was filed to take possession of the suit land, thereafter, they inspected the file and engaged a new counsel. However, no explanation is forthcoming about the non-appearance of their earlier counsel. No affidavit of the earlier counsel has been placed on record to show that he never informed the appellants about the order of dismissal. Neither any fact is coming on record to the effect that the appellants have taken any action against their earlier counsel for non- appearance or for not informing them. Even it is not averred that the earlier counsel did not inform the appellants. Thus, the cause shown by the appellants to condone the delay is not acceptable. Prayer for condoning the delay in filing this application is rejected. Consequently, the application for recalling of the aforesaid order and restoration of the appeal is dismissed. September 27, 2011 (RAKESH KUMAR GARG) ps JUDGE