Bombay High Court
Rajnarainsingh Avadhraj Singh, Shyam ... vs Smt. Vidyadevi Widow Of Ramraj Singh ... on 12 December, 2002
Equivalent citations: 2003 A I H C 3742, (2003) 4 ALLMR 1071 (BOM) (2003) 7 INDLD 683, (2003) 7 INDLD 683
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
Heard the Advocates for the parties. Perused the record.
1. In the facts and circumstances of the case both the applications being required to be heard together, were heard accordingly and are being disposed of by this common order.
2. Rule. By consent, the rule made returnable forthwith.
3. Civil Application No. 4437 of 2002 is for condonation of delay in filing Civil Application No. 1932 of 2002 and later application i.e. Civil Application No. 1932 of 2002 is for restoration of First Appeal No. 891 of 1995, which was dismissed on 6th October, 2001 as well as for condonation of delay in filing the certified copy of the decree in the said Appeal. Civil Application No. 4437 of 2002 is hereinafter referred to as the application for condonation of delay and the Civil Application No. 1932 of 2002 is hereinafter referred to as the application for restoration.
4. In the proceedings in application for condonation of delay it is the case of the Petitioners that after the dismissal of the Appeal on 6th October, 2001 the appellants preferred Letters Patent Appeal No. 60 of 2001 which was disposed of on 11.3.2002 and thereafter the application for restoration was filed on 1.4.2002 and therefore, there was sufficient cause for condonation of delay in filing the application for restoration.
5. As far as proceedings in the application for restoration is concerned, it is the case of the Petitioners that after the extension of period by three months for enabling the Petitioners to place on record certified copy of the decree by the order passed by this Court on 24.1.2001, the certified copy of the decree was actually filed in this court on 23.3.2001. However, by order dated 22.6.2001 as none appeared on behalf of the Petitioners in the said Appeal and no steps were taken to explain the delay in filing the certified copy of the decree and the office objections in that regard were not removed, it was ordered that the matter be placed before the Court on 18.7.2001. Thereafter, when the First Appeal came up for final hearing on 6.9.2001 the same was ordered to be dismissed on the ground that inspite of giving sufficient time, no steps were taken to file an application for condonation of delay and therefore, the Appeal was ordered to be barred by limitation and dismissed. The Petitioners preferred Letters Patent Appeal which was came up for hearing on 11.3.2002 and the Petitioners withdrew the same stating that they would file application before the learned Single Judge for condonation of delay in filing the certified copy and for restoration of the Appeal and that the Petitioners therefore, have filed the said application. It is further their case that after the delivery of Judgment by the trial court on 31.7.1995 the certified copy of the order was applied on 14.9.1995 and the Appeal was filed without waiting for certified copy of the decree. It is their further contention in the application that the Appeal has already been admitted and the Petitioners having given sufficient time to produce the certified copy, they did not make any application for condonation of delay and that the Appeal having once admitted, the same could not have been dismissed without fully hearing of the appeal and after giving reasons for dismissal of the appeal.
6. The learned Advocate appearing for the Petitioners has submitted that after the disposal of the Suit by the trial court by its Judgment on 31.7.1995 an application for certified copy of the Judgment was filed on 14.9.1995 on a printed form. However, while applying certified copy of the Judgment, the Advocate for the Petitioners did not ask for the certified copy of the decree and the application was filed only in relation to the certified copy of the Judgment and order and this fact was not known to the Petitioners. It was only after the objections were raised, the Petitioners with the help of another Advocate took out a search of the reports and then realised that the application dated 14.9.1995 was in relation to certified copy of the Judgment and order and it did not include certified copy of the decree and therefore, filed a fresh application on 8.1.2001 and the certified copy of the decree was made available to the Petitioner on 22.3.2001 and it was filed in the Court immediately on the text day i.e. on 23.3.2001. There was a bonafide mistake on the part of the Petitioners in not filing the certified copy of the decree alongwith the Appeal and it was entirely on account of the fault of the earlier Advocate who appeared for the Petitioners who had by mistake restricted the application to the certified copy of the Judgment and order and no asked for certified copy of the Decree while filing the application on 14.9.1995. Further considering the fact that Appeal was already admitted the time was granted to file certified copy of the decree, the Petitioners bonafide believed that application for condonation of delay was not required to be filed. Accordingly, learned Advocate for the Petitioners submitted that in the facts and circumstances of the case, this is a fit case for invoking discretionary power under Section 5 of the Limitation Act 1963 and therefore, delay in placing on record certified copy of the decree as well as delay in filing application for restoration should be condoned. It is further submitted that application for restoration was filed within two weeks after withdrawal of the Letters Patent Appeal and it shows bonafide on the part of the Petitioners and their interest in pursuing with the matter.
7. The learned Advocate for the Respondents on the other hand, has submitted that there has been inordinate and unexplained delay of more than 4 and 1/2 years in placing on record the certified copy of the decree and the application for restoration does not disclose any justification for condonation of delay. According to the learned Advocate for the Respondents, question of condonation of delay does not arise at all i view of the fact that the provisions of Section 5 of Limitation Act are not at all attracted in the case in hand. According to the learned Advocate for the respondents question of extension of period under Section 5 can arise only in a case where the party files application for certified copy of the Judgment and decree within the period of limitation but is prevented to file the Appeal within the period of limitation for justifiable reason to be explained by such party but not incase of failure on the part of the party to take any step in the period of limitation to file the Appeal against the Judgment pronounced by the trial court. In that regard, failure to apply for certified copy of the Judgment and decree within the period of limitation is to be construed as failure on the part of the appellant to take any step for filing of the appeal within the period of limitation and therefore, in such cases, question of extension of period of limitation under Section 5 can not arise. Considering the fact that no application for certified copy of the decree was filed till 8.1.2001, the records disclose that the Petitioners had not taken any step to file the appeal within the period of limitation and hence, question of extension of period of limitation does not arise. It was also sought to be contended that question of exclusion of period in limitation does not arise. It was also sought to be contended that question of exclusion of period in terms of provision of law contained in Section 12, also does not arise in the case in hand as the exclusion of period can arise only in cases where the certified copy is asked for within the period of limitation and not otherwise and that has been clarified in the explanation clause to Section 12 itself. Reliance is sought to be placed in the decision of the Apex Court in the matter of Udayan Chinubhai v. R.C. Bali reported in AIR 1977 SC 2319 and of the Division Bench of this Court in J.K. Kapur v. Vachha & Co. .
8. Before considering the rival contentions in the matter, it is necessary to take note of certain undisputed facts revealed from the records. On 31.7.1995 the trial court decreed the suit being SCC No. 6545 of 1982 filed by the Respondents for declaration and injunction restraining the Petitioners from entering the disturbing the possession of the respondent/plaintiff in relation to the suit stall which is a pan shop. On 14.9.1995 the Petitioners applied for certified copy of the Judgment and order of the trial court. On 5.10.1995 the Petitioners filed appeal against the Judgment of the trial court. On 6.10.1995 the matter was mentioned before the Court thereupon it was directed to be placed for hearing on admission on 30.10.1995, while granting interim relief in the nature of stay of the operative portion of the impugned decree. Matter thereafter was placed for hearing on admission on 15.11.1995 on which date the appeal was admission on 15.11.1995 on which date the appeal was admitted. However, the same was placed before the court on 13.12.1996 on account of failure on the part of the Petitioners to remove the office objections and there upon four weeks time was granted to the petitioners to do the needful in the matter. Again the matter was placed before the Court on 24.2.1997 and six weeks time was granted to the petitioners to file the certified copy of the decree. Matter again appeared before the Court on 12.12.2000 and it was noted that even though by order dated 24.2.1997 six weeks time was granted to the Petitioners to file certified copy of the decree, the same was not filed till then and therefore, it was observed that if certified copy of the decree was not to be filed within four weeks from that day, the First Appeal would stand dismissed without reference to the Court and if the same was to be filed within the specified time, the First Appeal was ordered to be placed for admission. Civil Application No. 315 of 2001 was taken out by the Petitioners and it was placed before the Court on 19.1.2001 whereupon time was granted till 23.1.2001 for removal of all the office objections. On account of failure to remove office objections, the same was again placed before the Court on 24.1.2001. On that day, the Court ordered that the time granted by the Court for filing certified copy vide order dated 12.12.2000 was further extended for a period of three months. The Petitioners filed a certified copy of the decree of the trial court on 23.3.2001. Matter was thereafter placed before the Court on 22.6.2001. However, none appeared on behalf of the Petitioners or the Respondents and the Court passed the following order:-
"None present. In the event no steps will be taken to explain the delay and if the office objections will not be removed the matter should be put up before the court order on 18.7.2001."
As nothing was done by the Petitioners to comply with the said order, the matter was placed before the Court on 6.9.2001 and the learned Single Judge passed the following order:-
"Inspite of grant of sufficient time and additional time by order dated 22.6.2001, no steps were taken by the Appellant to move an application for condonation of delay. Consequently, there is no alternative but to dismiss the appeal being barred by limitation."
It is also to be noted that during the pendency of the proceedings some other applications were also filed and they were disposed of after hearing the parties. However, reference to them in detail is not necessary for the purpose of decision in the applications under consideration.
9. The materials on record therefore, undisputedly disclose that the certified copy of the decree was not filed alongwith the appeal against the Judgment of the trial court. The provisions of law contained in Order 41 Rule 1 of CPC as well as the relevant provisions of the Appellate Side Rules of this High Court clearly warranted at the relevant time filing of the certified copy of the decree alongwith the appeal. Undoubtedly, in case of any difficulty in procuring certified copy of the decree, the parties were permitted to move for extension of period for filing such certified copy of decree and undoubtedly it is a practise of the court to grant such time in deserving cases. Incase of failure to submit such certified copy, the office is required to raise objection in that regard and to bring the said objection to the notice of the parties. Records apparently disclose that the office had raised necessary objection for not filing of the certified copy of the decree and it was made known to the Petitioners and the petitioner was granted time to place on record certified copy of the decree and infact the court had passed the order in that regard on 12.12.2002 clearly specifying that if the certified copy is not filed within four weeks from that day, the appeal would stand dismissed without reference to that court and incase the same was to be filed, the appeal was to be placed for admission immediately. This period was further extended by three months by order dated 24.1.2001.
10. Above undisputed facts undoubtedly disclose that time to place on record the certified copy of the decree was extended by the court till 24.4.2001. Simultaneously it also discloses that the Court had specifically directed the matter to be placed for admission immediately on filing of the certified copy of the decree on record. In other words, though initially by order dated 15.11.1995 the appeal was stated to have been admitted, taking note of the fact that the appeal cannot be admitted in the absence of certified copy of the decree, the order dated 15.11.1995 directing the admission of the appeal was modified and it was held that the matter was required to be heard afresh for admission in view of delay in placing on record certified copy of the decree. This is clear from the order dated 12.12.2000. It is nobody's case that while passing the order dated 12.12.2000 the earlier order dated 15.11.1995 was not brought to the notice of this court or that the order dated 12.12.2000 was passed in ignorance of the order dated 15.11.1995. Infact the order dated 12.12.2000 was passed in the appeal itself and being fully aware of the order dated 15.11.1995 and it was stated that the matter was to be placed for hearing on admission after placing on record certified copy of the decree.
11. From the above disclosed facts, it is apparent that even though the time for placing on record certified copy was extended by order dated 24.1.2001, the issued as to the entitlement of the Petitioners to be heard in the appeal against the decree of the trial court was kept open and being so and having filed certified copy beyond the period of limitation, it was necessary for the Petitioners to explain the delay in filing the certified copy of the decree as on account of delay in filing certified copy which is an essential accompaniment of the Memorandum of Appeal to construe that the appeal to have been filed within a period of limitation, it was necessary of the Petitioners to justify the delay in filing the appeal which had resulted on account of delay on placing on record certified copy of the decree.
12. At this stage, it is necessary to consider the contention sought to be raised on behalf of the Respondents in relation to the provisions of Section 5 and 12 of the Limitation Act 1963 and the decisions sought to be relied upon in that regard.
13. The explanation clause to Section 12 provides that in computing the period of limitation, the time requisite for obtaining a certified copy of a decree of an order which is required to be excluded in terms of the provisions of the said section, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded. According to the learned Advocate, question of exclusion of time spent for preparation of the decree would arise only in cases where the party takes the necessary steps for preparation of the decree within the period of limitation and not otherwise. In other words, if the period of limitation prescribed for filing of appeal is 30 days from the date of pronouncement of the Judgment, and the party files an application for certified copy of the decree within such 30 days, then the period spent in preparation of such decree can be excluded while computing period of limitation but if steps for obtaining certified copy are taken after the expiry of limitation, question of exclusion of period spent for obtaining the certified copy of the decree does not arise at all.
14. The Apex Court in Udayan Chuimanbhai's case has held that:-
"Computation of limitation is predominantly the governing factor in Section 12. In order to achieve an easy computation of period of limitation without hardship to litigants and to avoid vicissitudes of time consuming litigious exercises which the old section had been subjected to the Explanation has been introduced. In order to enable correct computation of the period of Limitation under Section 12(2) with certitude when it is provided therein, that certain time has to be excluded, it is then clearly provided, at the same time, in the Explanation that a particular period of time shall not be excluded. The words "under this section in the explanation are consequent relating as was done to the governing to the section viz. computation of period of limitation, one for computation period of limitation 12(2) and other for computation of time requiring in obtaining copy of the decree under the explanation from computation of limitation. The explanation cannot be read in isolation. The position may be different if a decree in law cannot be prepared because of non compliance with some directions in that Judgment, the explanation does a composite service positive as well as negative. Positively it prescribes the mode of correct computation. By a process of exclusion and not explained the time before making an application for copy. The explanation does not warrant exclusion of certain period positively excluded by him for the purpose of computing the period of limitation by "excluding"
included period for the benefit of a person prior to making application, must be respected."
15. The division Bench of this court in Jaddish Krishn Kapoor's case has held thus:-
"The entire time taken by the party in making an application for copies from the date of the pronouncement of the Judgment is not to be ex-cluded even if that is an over lapping period which is also taken by the court in drawing up the decree. We have therefore nodoubt that the legal position from the 1st of January 1964 clearly is that a party must apply for a copy of the Judgment and decree within the period of limitation prescribed for the appeal and if he does not do so but waits beyond the prescribed period of the limitation on the specious excuse that the court is still drawing up the decree, his application being beyond limitation, the appeal that will be filed subsequently can never be in time."
16. Considering the law laid down by the Apex Court and the Division Bench of this Court, it is therefore, clear that question of giving benefit of exclusion of a period required for obtaining certified copy of the Judgment and decree while filing the appeal can arise only in cases where the party applies for certified copy of the Judgment and decree within the period of limitation and not otherwise. A party sleeping over his right for the entire period of limitation and thereafter asking for the certified copy of the Judgment and decree cannot claim benefit of exclusion of the said period while computing period of limitation which he would have otherwise been entitled to under Section 12, had he filed application for certified copy within the period of limitation. Learned Advocate for the Respondents is therefore justified in contending that in case where application for certified copy of the Judgment and decree is filed beyond the period of limitation prescribed for filing of the appeal the party cannot avail the benefit of exclusion of period under Section 12 of the Limitation Act.
17. As regards the provisions contained in Section 5 of the Limitation Act, the said section speaks of extension of prescribed period in certain cases. It provides that any appeal may be admitted after the prescribed period if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. The explanation clause thereto provides that the fact that the appellant was misled by any order, practice or Judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of the said section. It is the contention of the learned Advocate for the Respondent that question of invoking the powers under Section 5 cannot arise unless the party filing the appeal discloses steps on the part of such party having been taken for the purpose of filing the appeal within the period of limitation and such fact would include filing of an application for obtaining certified copy of the Judgment and decree, and therefore, incase the party fails to disclose any such acts on his or her part, then such a party is not entitled to claim any benefit under Section 5 of the Limitation Act.
18. I am afraid the arguments in this regard if accepted would virtually defeat the very purpose of the provisions contained in Section 5. The Courts are fully empowered to extend the period of limitation in a case where the appellant discloses sufficient cause for not preferring the appeal within the prescribed period. In other words, sufficient cause for inaction on the part of the appellant within the prescribed period in relation to the filing of the appeal would justify admission of the appeal by invoking powers under Section 5 of the Limitation Act. The inaction on the part of the appellant within the prescribed period in relation to the "preferring the appeal" would certainly include an act necessary for the purpose of "preferring the appeal" within the meaning of the said expression under Section 5 of the Act. The law is very clear as regards the procedure to be followed for the purpose of filing of the appeal. The appeal cannot be filed without the certified copy of the Judgment and decree. Undoubtedly, in view of the amendment to the provisions of Order 41 Rule 1 w.e.f. 1.7.2002 the requirement of accompaniment of the certified copy of the decree at the time of presentation of Memorandum of Appeal though excluded, the necessity of the certified copy of the decree for disposing the appeal cannot be ruled out as various other factors like valuation of the Appeal, the court fee payable thereon would depend upon the bill of cost prepared by the Registry on disposal of the suit on the basis of the valuation and the court fee paid in the suit. Being so the necessity of the certified copy of the Judgment as well as of the decree for entertaining and disposal of the appeal cannot be considered as mere formality but has to be considered as mandatory requirement. Being so any step in the direction of collecting the legally required material necessary for the purpose of preferring the appeal would amount to taking steps for preferring the appeal within the meaning of the said expression under Section 5 of the said Act. Being so, "sufficient cause for not preferring" would also include sufficient cause for not preferring the application for certified copy of the decree within the period of limitation.
19. Even otherwise, thee can be cases where a party may be totally unaware of the pronouncement of Judgment for a period more than one prescribed for preferring the appeal and on having learnt of such Judgment after the expiry of such period desires to file the appeal, is such person to be considered to be totally debarred from preferring the appeal? Any such interpretation would virtually defeat the very purpose of Section 5 of the Limitation Act. It is well settled that condonation of delay is not the same thing like exclusion of time under Section 12 or 14 of the Act. It is rather extension of time which is a matter of concession or indulgence to the applicant which can not be claimed as a matter of absolute right; however, Section 5 has to receive a legal construction so as to advance substantial justice when no negligence or want of bonafide is imputable to the applicant. Therefore, contentions sought to be raised on behalf of the respondent in this regard are to be rejected.
20. Reverting to the facts of the case, it is not in dispute that no application for certified copy of decree was filed till 1.1.2001. The suit was decreed on 31.7.1995. The application for restoration, as pointed out earlier, discloses any two grounds in support of the claim for condonation of delay viz. firstly that the time to produce the certified copy was extended from time to time and last occasion was on 24.1.2001 and secondly, that the appeal having been admitted it could not have been dismissed. Apparently, there is no justification for non filing of the application for obtaining the certified copy of the decree till 7.1.2001. It is pertinent to note that apart from the objection being raised by the office in relation to non production of the certified copy of the decree on record, the specific orders were passed regarding non compliance of the said requirement of and the order dated 24.2.1997 clearly speaks of statement by the Counsel of the Petitioners that the certified copy would be placed on record within six weeks therefrom. Evidently, it was within the knowledge of the petitioners that the certified copy of the decree was required to be placed on record, apart from the fact that for the purpose of the maintainability of the appeal, such certified copy was required to be placed on record. Inspite of the knowledge to the petitioner about the certified copy being required to be placed on record, there is absolutely no explanation as to what prevented the petitioners from obtaining certified copy from February-1997 till January-2001. The arguments advanced in the course of the hearing of the matter blaming the earlier Advocate on record for failure to ask for certified copy of the decree in application dated 14.9.1995 without disclosing any cause for failure on the part of the petitioners to obtain certified copy from February-1997 onwards inspite of the full knowledge about the requirements thereof and attempt to blame the earlier Advocate of the petitioners in that regard clearly reveal lack of bonafide on the part of the petitioners.
21. Contention that the petitioners were granted time to produce the certified copy of the decree would itself disclose sufficient cause for condonation of delay is devoid of substance. As already observed above, by order dated 12.12.2000 it was made specifically clear that on account of failure on the part of the petitioners to file certified copy of the decree alongwith the appeal and the same was sought to be placed on record long after the expiry of the period of limitation, the petitioners had to justify the delay for the purpose of admission of the appeal. The petitioners did not bother to file any application for condonation of delay. The hesitation on the part of the petitioners to seek condonation of delay cannot be said to be unintentional as records reveal that inspite of necessary warning given to the petitioners by order dated 22.6.2001 that on account of failure to take appropriate steps to explain the delay and unless office objection in that regard is removed, the matter would be placed for consequential order on 18.7.2001, the petitioners knowing well the consequences of their failure to take appropriate steps did not bother to move any application for condonation of delay and consequently appeal was dismissed on 6.9.2001. Even thereafter attempt was made to challenge that order without explaining the delay by filing Letters Patent Appeal and only when the Letters Patent Appeal came up for hearing it was withdrawn on the basis that the petitioners would file necessary application for condonation of delay.
22. Even after submitting before the Division Bench that the Petitioners would file necessary application for condonation of delay, the petitioners did not bother to give any explanation for condonation of delay in their application for restoration, as is evident from the contents of the said application for restoration. Rather they have choosen to contend the order of dismissal of the appeal to be illegal and the condonation of delay in filing the certified copy of the decree to be a matter of right and as a matter of course on the basis of time that was granted to place on record the said certified copy. The matter does not end there. The petitioners even do not hesitate to make incorrect statement in the said application for restoration in relation to the application which was filed by the Advocate on 14.9.1995. Knowing well that the application which was filed on 14.9.1995 was only in relation to the certified copy of the Judgment and order, a solemn statement is made in para No. 1 of the application for restoration that:-
"Application for certified copy of the decree was made on 14.9.1995 in the City Civil Court. The certified copy of the decree was not obtained as the proceedings were not traceable or mis-placed in the Court."
The statement has been verified as true to his own knowledge and belief by the petitioner No. 1 Raj Narayan Singh. Nodoubt, when the matter was being heard an attention was drawn to the said statement, the learned Advocate for the petitioners on behalf of the petitioners submitted that the petitioners were seeking to tender their apology for the said incorrect statement. Infact it is too late to entertain any such apology on behalf of the petitioners as regards the said incorrect statement, as the submission in that regard has been made only after drawing attention of the petitioners to the said fact. The said statement is from the application filed by the petitioners themselves. The application was filed knowing well that it was pertaining to the condonation of delay in placing the certified copy of the decree on record. The statement is in relation to the certified copy of the decree. Being so, the statement is very relevant statement in relation to the matter in question and therefore, it cannot be presumed that the petitioners did not know the consequences of making such incorrect statement. Be as it may, the same discloses the conduct and the attitude of the petitioners and both these factors are very relevant while dealing with the application seeking a discretionary relief from this court and more particularly when there is a delay of merely four years in seeking certified copy of the decree.
23. The extension of time to enable the petitioners to place on record certified copy of the decree, as already observed above by itself does not amount to condonation of the delay in filing the appeal. It is not mere lodging of the appeal that is sufficient but the lodging has to be in accordance with the provisions of law and by following the procedure prescribed by the law and not otherwise. The procedure clearly required Memorandum of appeal to the accompanied by certified copy of he decree and in the case in hand Memorandum of Appeal was not accompanied by such decree till 23.3.2001. Leave to allow the Memorandum of Appeal to be accompanied by the certified copy of the decree by itself cannot amount to condonation of delay which has to be decided by considering material on record to ascertain whether there has been sufficient cause for condonation of delay by applying the provisions of law in Section 5 of the Limitation Act. An order condoning the delay has to be judicious order and should disclose the application of mind of the Judge and the facts disclosed should constitute sufficient cause for the purpose of condonation of delay and more particularly when it is a contested matter. Hence, merely because the party who is allowed to place on record certified copy of the decree and for that purpose time is granted that itself would not tentamount to condonation of delay in filing the appeal.
24. The contention that appeal was admitted and therefore there was no occasion for condonation of delay is also devoid of substance. As already pointed out above, nothing prevents the court from modifying its earlier order for justifiable reason and when the party tries to obtain any relief without complying with the mandatory provision in relation to the procedure which is required to be followed, the courts are fully empowered to pass an appropriate order in exercise of inharent powers. In the case in hand as already pointed out above the order dated 12.12.2000 clearly discloses that appeal was required to be heard for admission after placing certified copy of the decree on record. Being so, merely because the registry had placed the appeal for the purpose of final hearing that itself would not mean that judicial order passed by the court would stand nullified. Mere listing of the case alongwith matters fixed for final hearing that itself would not decide the status of the case. When the records apparently disclose that the matter is still required to be heard on admission, listing of such matters alongwith other final hearing and even taken up for the purpose of final hearing pursuant to listing of such matter on the board containing the matters for the final hearing that by itself would not disclose the stage at which the matter stands. Being so, it cannot be said that the matter was admitted and could not have been disposed of without being heard finally. That apart, considering that the appeal being continuation of the suit and bearing in mind provisions of Order 41 Rule 17 read with the provisions of Section 151 and Order 17 of the Code of Civil Procedure, the default by a party would not restrict to non appearance of the party but would also include a default in carrying out any act necessary for the purpose of further progress of the proceedings in the appeal and failure on the part of the party to the appeal to perform such an act would, empower the court to dismiss the appeal for default. Once the order dated 22.6.2001 clearly required the petitioners to explain the delay and to remove the objection and further being required to face the consequences of failure to explain the delay and to remove the office objection within the specified period and the petitioners having failed in that regard, nothing prevented the court from dismissing the appeal for default on 6.9.2001. Mere absence of the word "default" in the order dated 6.9.2001 would not make any difference.
25. Curiously, inspite of the through knowledge of requirement and necessity of an application disclosing sufficient cause for condonation of delay, no such application was filed alongwith the application for restoration and such application was filed merely seven months after filing of the application for restoration, and that too without disclosing any fact justifying the delay and merely reiterating the contents of the application for restoration. Undoubtedly, one additional sentence does appear in the said application to the effect that "however inadvertently the same remained to be filed as it is not came to the notice of the petitioners". Again it is pertinent to note that one of the petitioners being the petitioner No. 3 is holder of LL.B. degree. There is no satisfactory explanation for delay in filing the applications.
26. In the facts and circumstances of the case therefore, the petitioners having failed to disclose any sufficient cause for condonation of delay, the applications deserve to the dismissed and are accordingly hereby dismissed with no order as to costs.