B.S. Chauhan, J.@mdashThis Special Appeal has been filed against the judgment and order of the learned Single Judge dated 14.08.2007, by which the application of the petitioner-appellant for restoration of the writ petition has been dismissed on the ground that there was no justification for condoning the delay of more than six years.
2. The facts and circumstances of the case are that the petitioner-appellant, while serving as a Soldier in E.M.E., was given a charge sheet on 22.11.1991 for remaining absent from duty without leave. After concluding the enquiry, he was awarded the punishment of dismissal from service vide order dated 24.11.1991. The petitioner-appellant filed Writ Petition No. 12853 of 1992, which was dismissed in default vide order dated 04.05.2001. An application for restoration with application for condonation of delay was filed in May, 2007. The said application was rejected by the learned Single Judge vide impugned judgment and order dated dated 14.08.2007 taking note of the fact that the matter was earlier listed on 12.04.2001 and adjournment was sought. The matter was adjourned on the condition that on the next date of listing, no adjournment would be granted on any ground, whatsoever. When the matter came up for hearing on 04.05.2001, none appeared to press the petition and, therefore, petition was dismissed for want of prosecution.
3. Shri B.N. Singh, learned Counsel appearing for the petitioner-appellant has submitted that the petitioner-appellant had engaged a counsel, who executed a Vakalatnama in his favour and, therefore, he cannot suffer for inaction on his part. The learned Single Judge ought to have recalled the said order dismissing the writ petition in default restored the writ petition to its original number and heard the case on merit. Therefore, the appeal deserves to be allowed.
4. On the other hand, Shri C.K. Rai, learned Standing Counsel has opposed the appeal submitting that the application for restoration was filed after more six years of dismissal of the writ petition. The petitioner-appellant was not prosecuting his case with diligence and it was his solemn duty to find jut from his counsel or the Court as what was the status of his case. If he did not consider it proper to enquire about the status of his case for a period of more than six years, no interference is required and the appeal is liable to be dismissed.
5. We have considered the rival submissions made by learned Counsel for the parties, perused the record and examined the judgments relied upon by the counsel for the parties.
6. In Rafiq and Anr. v. Munshilal and Anr. AIR 1981 SC 140 ; and
What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.
7. Similar view has been reiterated in Goswami Krishna Murarilal Sharma v. Dhan Prakash and Ors. (1981) 4 SCC 474, where the counsel had withdrawn his Vakalatnama without notice to his client. The Hon''ble Supreme Court following its earlier judgment in Rafiq (supra), held that the Court should not have proceeded to dismiss the appeal straight away on the ground that the appellant was not present in person when his counsel had withdrawn the Vakalatnama. At least a notice ought to have been given to such a litigant to make an alternative arrangement or appear in person.
8. Similar view has been reiterated in
9. In
10. In
The appellant and his lawyer can remain absent with impunity, not once, again and again, the Court issues a warrant for the appellant''s presence. A complaint to the Bar Council against the lawyer for nonappearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too, would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of appellant, the higher Court can remedy the situation if there has been a failure of justice.
11. In
It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult.
12. Thus, in such a case the applicant has to establish that he was neither negligent nor careless in execution of the Court proceedings and, therefore, cannot be said to be at fault.
13. The petitioner-appellant was in service. He is an educated person and not a rustic villager. No explanation has been furnished as under what circumstances he could not make any attempt to find out status of his case. It was not the case where his counsel pleaded no instruction rather he appeared and sought adjournment. Court granted adjournment on the condition that the matter shall not \\ be adjourned further and as none appeared on the date when the matter was listed, it was dismissed in default. Petitioner-appellant could not furnish any explanation for approaching the Court after about six and half years. In such a fact situation, we do not find any cogent reason to interfere with the impugned judgment and order of the learned Single Judge. The appeal lacks merit and is accordingly dismissed.
