1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1683 OF 2009 IN FIRST APPEAL NO.614 OF 2007 The Regional Director, ………… Applicant E.S.I.C., Colaba, Mumbai Vs. M/s Mercantile & Industrial ………… Respondents Development Co., Sion,Mumbai Mr. Rajan Jaykar, Advocate for Applicant. Mr. Ravindra Parekh, i/by Parekh & Co. Advocate for respondents. CORAM : Smt. R.P. SondurBaldota, J. Date : 8th May, 2009 P.C. : 1. This application is taken out by the applicant for restoration of the appeal which was dismissed pursuant to the order dated 28th February 2007 after condoning the delay in filing the application. The applicant also seeks leave to file private paper book as per the order dated 28th February 2007. The application is opposed by the respondents contending that the same is not maintainable and it is barred by the Law of Limitation, there being no sufficient explanation to condone the delay. 2. The Second Appeal in which the present Civil Application is taken out was admitted on 28th February 2007. At the time of admission, the appellant was directed to file private paper book along with decree form within a period of one year from that day. It was however, ordered that if the compliance as regards the filing of the paper book is not made within the stipulated time, 2 the appeal to stand dismissed for want of prosecution, without further reference to the Court. The applicant was unable to file the paper book within the stipulated time, therefore, the appeal came to be dismissed. 3. Mr. Parekh, the learned counsel for respondents submits that there is no provision in the Code of Civil Procedure for filing the application for restoration of the appeal which is dismissed in the above manner. Once the appeal is dismissed, the Court becomes functus officio and the only remedy to the appellant is to challenge the order in appeal and not by filing the application to the same Court. The other ground of objection raised by Mr.Parekh is that it was open for the appellant to file an application for extension of time to file private paper book. As remedy under Section 148 Code of Civil Procedure was not resorted to by the appellant the Court should not come to the rescue of an indolent appellant. It is next submitted by Mr. Parekh that there is substantial delay in filing of the present application which has not been explained by the applicant. 4. Mr.Jaykar, the learned counsel for the applicant submits that the Court must take note of the peculiar circumstances in which appeal came to be dismissed i.e. for non filing of private paper book. He submits that preparation of the paper book has never been the responsibility of the litigants. If one peruses the High Court Appellate Side Rules, paper book is required to be prepared by the office of the Court. Looking to the large pendency of the appeal proceedings and the stupendous task of preparation of paper book, the Court has found out a via media of directing parties to file 3 their private paper book, so that preparation of paper book is expedited. The bar has also risen to the situation and accepted such directions wherever given. That is how the direction in the order dated 28th February 2007 came to be issued by the Court. He points out that such directions are now routinely issued by the Court. Therefore, for non compliance of such directions, the appellant should not be punished with dismissal of the proceedings. 5. As regards maintenability of the application, Mr.Jaykar has two arguments. Firstly that though Civil Procedure Code does not specifically provide of an application of restoration proceedings dismissed on such ground the same is maintenable under general law. Relying upon decision of Full Bench of Orissa High Court in Smt.Bimala Devi and others vs. Patitapaban Dev and others, reported in AIR 1973 ORISSA 169 he submits that such an application can be filed independent of the Code of Civil Procedure. He draws attention to Article 122 of the Limitation Act, which provides for the period of limitation for such an application. The said provision reads as follows: Description of suit Period of Limita- tion Time from which period begins to run 122 To restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. Thirty days The date of dismissal According to Mr. Jaykar, this provision under the Limitation Act is sufficient to show that the application as filed is maintainable. 4 6. Civil Procedure Code does not make provision for restoration of the appeal dismissed on the ground as in the present case for obvious reason. It does not provide for dismissal of an appeal for non filing of paper book. This provision is made under Bombay High Court Appellate Side Rules. Generally printing of paper book is responsibility of the Court office. However, Chapter VII Rules 10 (ii) and (iii) provide that where the printing has been dispensed with, the appellant shall supply to the office copies of typed paper book within a period of two months of the order directing notice to issue or the orders of the Court to the contrary. Printing can be dispensed with in case of appeals from orders, appeal arising out of Hindu Marriage Act and Special Marriage Act and expedited appeals other than first appeals and with the leave of the Court in the expedited first appeals. Rule 12 of the Chapter provides that where printing has been dispensed with and the copies of paper book have been supplied by a party to the proceedings, he shall be entitled to costs of preparing the same at the rate mentioned in the rule. These rules show that preparation of paper book is essentially responsibility of the court office. Rule 10(vi) provides for dismissal of the appeal for non prosecution where paper books are not filed within time. The power to dismiss the appeals in such matter vests with the Registrar of the High Court. He also holds power to excuse delay in filing of paper book. 7. The paper books are generally printed. Printing can be dispensed with only in case of certain appeals. The present appeal is a second appeal, hearing of which is not expedited. Therefore, 5 the same is not covered by Rule 10(ii) of Chapter VII. Therefore ordinarily the direction of dispensing with the printing could not have been given. However as pointed out by Mr.Jaykar such directions are often given so as to reduce the time taken for preparation of paper book and reduce the burden on the office to some extent. The bar has also been co-operative in accepting the directions and complying with the same. 8. Though Code of Civil Procedure does not provide for an application for restoration of an appeal dismissed for want of prosecution, for non filing of the paper book, it must be held that such an application is independently maintainable under general laws as Article 122 of Limitation Act,1963 provides for the period of limitation for such an application. Otherwise the Limitation Act would not have provided for the period of limitation in filing the application. The second argument of Mr.Jaykar is that the Court has inherent powers under Section 151 Code of Civil Procedure to consider application for restoration in peculiar circumstances of the case. Since it has been held that the application for restoration as filed is maintenable, there is no need to consider the second argument of Mr.Jaykar. 9. It has next been submitted by Mr.Parekh that the present application is barred by the Law of Limitation i.e. Article 122 of the Limitation Act. He submits that the appellant ought to have filed the present application within a period of 30 days from the date of dismissal of the application. Further the application does not contain any explanation whatsoever for condonation of the delay. The applicant states at paragraph 4 of the application that 6 the paper book could not be prepared within the specified time due to exigencies of work and non availability of required documents for preparing the paper book. Mr. Jaykar submits that when the appellant had approached the trial Court for certified copies of the documents to prepare the paper book, the record and proceedings had already been sent to this Court. As a consequence, the documents could not be received within time. According to Mr.Parekh, this explanation is only for not preparing the paper book within the stipulated time. However, there is no explanation for not making the present application within a period of 30 days from the date of dismissal. Considering the peculiar facts and circumstances of the application, I am inclined to extend the explanation given to the present application also and condone the delay. Hence, the Civil Application is allowed in terms of prayer clauses (a) to (e). 10. Mr. Jaykar states that the paper book is ready for filing in the Court. The paper book tendered on file is taken on record. (Smt.R.P.SondurBalodra, J.)