Civil Revision No.2049 of 2010(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2049 of 2010(O&M) Date of Decision: March 15, 2011 Pritam Singh .....Petitioner v. Financial Commissioner (Revenue & Rehabilitation), Punjab, and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Onkar Rai, Advocate for the petitioner. Ms.Kavita Arora, AAG, Punjab for respondents no.1 to 6, 8 & 9. Mr.Rohit Ahuja, Advocate for respondent no.7. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside orders dated 20.8.1998, Annexure P6 and 12.8.2009, Annexure P7, vide which application dated 18.10.2000 for restoration of appeal filed by present petitioner-appellant was dismissed by learned Additional District Judge, Kapurthala. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned orders passed by learned Additional District Judge, Kapurthala. Brief facts relevant for the decision of present revision petition are that present petitioner-appellant had instituted a civil suit for declaration to the effect that the functionaries of the State Government in the Revenue & Rehabilitation Department while passing orders dated 11.4.1989, 7.11.1988, 17.3.1986, 18.12.1985, 18.3.1985 and 26.2.1983 have not acted with conformity with the fundamental principles of Judicial Procedure by not complying with the particular provisions of the Punjab Package Deal Civil Revision No.2049 of 2010(O&M) -2- Properties (Disposal) Act, 1976, while cancelling the sale of 77K-11M of land in favour of plaintiff and delivering Malkana possession of 52k-2M to defendant no.7-respondent no.7, and the orders are not binding on the plaintiff with consequential relief for mandatory injunction directing the defendants to put the plaintiff back in possession of the said land. Suit was contested by respondents-defendants and, however, the same was dismissed by learned trial Court vide judgment and decree dated 5.8.1995. Petitioner preferred an appeal on 6.10.1995 through his counsel Shri P.C.Ved, Advocate, Jalandhar, against the aforesaid judgment and decree before the Court of Additional District Judge, Kapurthala, alongwith an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal. However, application as well as the appeal has been dismissed in default by learned Additional District Judge, Kapurthala, vide impugned order dated 20.8.1998, which reads as under:- “ Case called several times. None has appeared on behalf of the appellant-applicant. It is 3.30 p.m. now. Therefore, the application u/s 5 of Limitation Act for condonation of delay in filing the appeal is dismissed u/O 9 Rule 8 C.P.C. And consequently the appeal is also dismissed. File be consigned to the record room.” Petitioner-plaintiff filed an application for setting aside the order dismissing the appeal in default, which was contested by respondents- defendants. The said application was also dismissed by learned Additional District Judge, Kapurthala, vide impugned order dated 12.8.2009, mainly on the ground that application was not filed within prescribed period of limitation and the same was filed after about two years of the order vide which the appeal was dismissed in default. It has been contended by learned counsel for the petitioner that petitioner is an illiterate person and belongs to labour class and that he was told by his counsel that his presence was not required at the time of hearing of the appeal and that only his counsel would appear in the appeal. It is further contended that in the meantime, he had migrated to the State of Rajasthan in search of job and used to visit off and on his village. It is further contended that the Lawyer of the petitioner never informed him about dismissal of the appeal in default and, however, when he came to the Civil Revision No.2049 of 2010(O&M) -3- village about a week before filing of this application, he came to know that appeal was dismissed in default and hence, he applied for certified copy of the same and filed the present application for restoration of the appeal, which was dismissed. Hence, it is contended that party cannot be made to suffer on account of fault on the part of the Lawyer. On the other hand, it has been contended by learned counsel for the respondents-State that it was the duty of the petitioner-plaintiff to keep track of the appeal filed by him and to contact his counsel and hence, no case for restoration of appeal on the application filed after about two years of dismissal of appeal in default is made out. Law is well settled by Hon'ble Apex Court that a litigant cannot be made to suffer due to negligence on the part of the counsel. However, it is difficult to lay down any inflexible rule on the question whether litigant can be held responsible for the negligence of the counsel and each case must by decided on its own facts. A litigant cannot be held responsible for the negligence of his counsel, unless there is any remissness on the part of the litigant himself. Where a litigant himself employes a counsel for the purpose of his appearance in the Court and the counsel neglects or fails to appear in the case, his negligent or failure would constitute a sufficient cause for the non appearance of the litigant provided that the litigant had done all that was required of him to ensure that the counsel would represent him on all necessary hearings. Likewise, if delay in filing the application for restoration of the appeal dismissed in default is on account of the fact that counsel failed to inform the litigant about the fate of the appeal, such negligent or failure on the part of the counsel would also be sufficient cause for condonation of delay in filing the application. On the point reliance has been placed upon a recent judgment of Hon'ble Apex Court in Ram Kumar Gupta and others v. Har Prasad and another, 2010(1) RCR (Civil) 3, wherein on the facts and circumstances of this case, it was observed that it would be improper to punish petitioner for non-appearance of his counsel. Relevant paragraphs of the same read as under:- “4. We have heard the learned counsel for the appellants and also examined the materials on record including the two orders passed by the High Court, one being rejection of the Civil Revision No.2049 of 2010(O&M) -4- writ petition for non-prosecution and the other being the order of rejection for restoration of the writ petition. The case that was made out by the appellants for restoration of the writ petition was that the learned counsel for the appellants Sh. Gupta could not appear before the learned Judge of the High Court as at that point of time, he was designated as Additional Advocate General of the State and for that reason, it was not possible for him to appear at the time of hearing of the writ petition as well as for restoration of the writ petition. Keeping this fact in mind and the fact that the appellants could not be represented at the time of hearing of the writ petition, we feel it appropriate to restore the writ petition to its original file in order to give an opportunity to the appellants to contest the same on merits. As noted hereinabove, for restoration of the writ petition dismissed for non-prosecution, an application for restoration was filed by the appellants which was rejected only on the ground of delay and latches. But on a perusal and on examination of the record of this case, we find that no delay was caused by the appellants in filing the application for restoration of the writ petition. In any view of the matter, the appellants cannot be punished for the lapses even if there was any, as the appellants had engaged a learned counsel to appear and contest the writ petition. That apart, considering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was no lapse on their part till the writ petition was dismissed for non prosecution and also considering the fact that a lawyer was engaged by them to contest the matter in the High Court who, however, subsequently was designated as an Additional Advocate General of the State and, therefore, could not be present at the time the writ petition was taken up for hearing, we cannot but hold that it would be improper that the appellants should be punished for non appearance of the learned counsel for the appellants at that time as we are Civil Revision No.2049 of 2010(O&M) -5- of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted. In Rafiq & Anr. vs. Munshilal & Anr. [1981 (2) SCC 788], this Court has also drawn the same conclusion while considering the application for restoration of a writ application when the learned counsel for the appellant could not be present at the time of hearing of the application. 5. In view of our discussions made herein above, we are, therefore, of the view that both the orders, namely, the order of rejection of the application for restoration as well as the application for dismissal of the writ application for non prosecution are liable to be set aside. Accordingly, both the orders are set aside and the writ petition is restored to its original file. However, considering the facts and circumstances and length of the matter being kept pending in court, we restore this writ application subject to the condition that the appellants shall deposit and pay a sum of Rs.10,000/- as costs to the respondent within two months from the date of filing of a copy of this order in the High Court. In Rafiq and another v. Munshilal and another, AIR 1981, SC 1400, also it was observed that interest of innocent party should not be made to suffer for misdemeanor or inaction on the part of his counsel. Hence, order dismissing the appeal in default was set aside subject to cost. Hon'ble Apex Court observed as under:- “3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will Civil Revision No.2049 of 2010(O&M) -6- look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr.A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the Civil Revision No.2049 of 2010(O&M) -7- appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs.200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi.” In the present case, appeal alongwith an application under Section 5 of the Limitation Act for condonation of delay was filed in the year 1995. Counsel was engaged by the petitioner-plaintiff. He had been appearing before learned appellate court. However, on one date, he did not appear and hence, impugned order dated 20.8.1998 was passed by learned Appellate Court dismissing the application under Section 5 of the Limitation Act for condonation of delay in filing the appeal and in consequence thereof, dismissing the appeal as well. It has been deposed by learned counsel for the petitioner- appellant that petitioner, who is an illiterate villager, was never informed by his counsel about dismissal of the appeal in default. He had gone to the State of Rajasthan in search of job, where he was working and when he came to his village and enquired about the fate of his appeal from his counsel, he came to know that the same has already been dismissed in default and hence, he filed application for restoration of the appeal, which was dismissed by learned appellate Court merely on the ground that the same was filed after about two years of the dismissal of the order. However, in view of these facts, petitioner-appellant cannot be made to suffer due to inaction on the part of his counsel in not appearing before learned appellate Court and not informing him that his appeal was already dismissed in default and rather interest of justice requires that appeal should be heard on merit. However, so far as the fact that the action of petitioner-appellant or his counsel has resulted in delaying the litigation, for that the other party can be compensated by way of cost. Civil Revision No.2049 of 2010(O&M) -8- Hence, the present revision petition is accepted. Impugned orders passed by learned appellate Court are set aside. Appeal as well as application under Section 5 of the Limitation Act for condonation of delay in filing the appeal are hereby ordered to be restored at the original numbers. However, petitioner-appellant is burdened with cost of `5,000/-, which shall be a condition precedent. Both the parties are directed to appear before learned appellate court on 10.5.2011 for further proceedings. Disposed of accordingly. 15.3.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.