I have filed a decree (of specific performance) for execution before executing court. The stage of argument of both parties (DH and JD) on Exhibit 1 were completed. Therefore matter was on order. Mean time many courts have been changed in last 2 years, but no order was passed on. Exhibit 1. I was also away from city hence could not attend the proceeding being my advocate told that, there was no necessity to be present in proceeding as the matter was on order. However in the said proceeding (after the stage of argument) no one appeared before court. The clark of the court also made a mistake thereafter while writing the roznama, instead of writing "for order on exhibit 1" he wrote for "steps". Recently a new judge without verifying the statues of earlier proceeding, he dismissed the Darkhast in default as no one is present when matter was called. I cannot file a fresh darkhast as 12 years are already completed. Therefore on knowledge, i filed a application for restoration with application for delay condonation (this application is filed under section 151 of cpc, as order 9 of CPC is not applicable to execution proceeding and order 21 rule 105 & 106 do not attract in this dismissal, as my matter was not for hearing stage as stated in order 21 rule 105). While submitting the application of restoration and condonation of delay, there are few typing mistakes are found, which may impact on end result. The notices to opposite party yet not served. Now my question is whether i can withdraw both application if court permits and then within short period i can file fresh both applications. Under this circumstances how the delay will be calculated. In my first application i have mentioned delay of 100 days from the date of receipt of certified copies. If i withdraw and file fresh then, that period comes to 90 days extra. Please provide the correct reply with provisions of section or orders of relevant acts.
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Hello,
You may file an affidavit to male necessary amendments/ corrections in the said application filed under 151. I would not advise you to withdraw the application.
Also if the notice has not been served then you may talk to the bench secretary and make corrections by pen in the file.
However if you want to withdraw and file fresh application then the period during which the case is pending is waived off. Refer to the following judgment:
https://indiankanoon.org/doc/592855/
Regards
1) no need to withdraw application for restoration and condonation of delay for mere typing mistakes
2) you can if you so desire withdraw the application with liberty to file fresh application
3) time taken in prosecuting proceedings before court diligently and bonafide is to be excused under section 14 of limitation act
4) in your case withdrawal of application is for typographical mistakes . Period of delay would be 190days
Thanks for best replies. However please highlight below. 1. instead of withdrawing the application, if i make application for amendment then when such application can be filed, i mean after appearance of opposite party or even before service of notice to opposite party (as happened in my above case, Notice is not yet served. 2. The period of 190 days for typomistake correction, from which date 190 days are calculated. suppose i have file my restoration application on April 1 st week. Therefore October will be (approximetely) within 190 days roughly. 3. when 190 days period is allowed for correction of typomistake, whether i should withdraw the previous application and file the frash within 190 days or just file an application. what is procedure?
1. You may file the same anyday. A copy of which will be send to the opposite party.
2. Just file an application
Firslty, as you have mentioned that you have already make an application for restoration and confirmation of delay under right provision of law.
Secondly, but, now you have both the option of fisrt James ring has been done for that application.
Thirdly, you may either file a fresh one withdrawing the previous one, but that would take some more time.
Fourthly, or you make an additional affidavit for correction of days in the application above mentioned, and that may be taken up on the same date of next hearing.
You can make application for amendment after service of notice to OP
2) the period of190 days would be counted from date of receipt of certified copy of order
3) not advisable to withdraw the application just carry out amendments with court permission
Please file a Review Petition challenging the dismissal order after obtaining date sheet copy from the lower court before the higher court as your application still stands and there is long way to go. Rest of the steps taken by you has not been taken properly but in hurry so remove all such material from the courts/by withdrawal, amendments can be made in the application for condonation of delay as advised, court will decide the application after the appearance of the OP.
You may appear in court and pray for allowing you to file another application or to allow to make amendment in existing application. With the permission of court, you may ammend the existing petition.
If this was the mistake then the court will return the application with instructions to mention correct number of days of delay in filing the condone delay petition, you can ask your advocate to follow yup the matter with the court clerk and get it returned for this reason which can be rectified and represented.
You should not relax or sleep over the case or be lethargic thinking that your advocate will take care of all the issues, you should also show some interest in your own case, you cannot blame anyone for the lapses in your side.
1. The court will not process your application seeking to condone the delay if the period of delay shown in the petition is erroneous, they will return he same after which you may represent the same by rectifying the error, you can be in touch with your advocate at least now on regularly.
2. This is a type mistake hence you can correct it without filing an amendment petition.
3. There is no necessity to file a fresh petition, the same application may be corrected, you may ask your advocate to contact the office of the court to rectify this error.