IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.173 of 2011 Date of decision: 19.5.2011 M/s Himachal Country Resorts ….Petitioner. Versus Mohan Lal Saini and others. ….Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Anil Chauhan, Advocate. For the respondents: None. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 18.3.2011 whereby the learned lower Appellate Court has dismissed the application filed under Order 9 Rule 8 CPC filed by the present petitioner for setting aside the order whereby the application under Section 5 of the Limitation Act was dismissed in default. 2. The undisputed facts are that the matter was pending before the learned District Judge, Nahan for long. It appears that there was no Presiding Officer in the Court for some time. Thereafter the matter was listed on 16.5.2006. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 Presence of the counsel for the applicant was marked on that date. The matter was then adjourned to 30.5.2006 when none appeared for the applicant and the application under Section 5 of the Limitation Act was dismissed in default. The application under Order 9 Rule 8 for recalling the aforesaid order was filed on 7.11.2006. There is delay in filing this application also. 3. The main ground taken in this application is that no notice was issued to the counsel or the appellant and therefore, they were unaware of the date. As noticed by the learned District Judge the presence of the counsel was marked on 16.5.2006, therefore, the averment that they had no notice does not appear to be correct. It would be pertinent to mention that in the application filed there is no averment that the presence of the counsel was wrongly marked. There is nothing on record to show that it was wrongly marked. If that be so, then it means that the counsel was present on 16.5.2006. 4. Shri Anil Chauhan, learned counsel for the petitioner, then contends that the party should not suffer for the negligence of the counsel. This 3 is a settled position of law that the party should not suffer for the negligence of the counsel and this Court has consistently taken this view. However, when a party approaches the Court for discretionary relief it must approach the Court with clean hands. Instead of admitting that the counsel was present on 16.5.2006 and for any reason could not appear on the next date i.e.30.5.2006 a totally false story was set up that neither the counsel nor the party were aware about the date. 5. In view of the above discussion, I find no reason to exercise the supervisory power of this Court under Article 227 of the Constitution of India. The petition is accordingly rejected. No costs. 19th May, 2011 (Deepak Gupta) ™ Judge