IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.9798-C of 2010 and CM No.6800-C of 2010 in RSA No.2371 of 2004 (O&M) Date of decision: 23.8.2010 Tejinder Singh ......Appellant(s) Versus Devinder Singh Sandhu ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.S. Narang, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) CM No.9798-C of 2010 Application is allowed and additional affidavit dated 19.8.2010 of Amanjot Singh Sandhu is taken on record. In the aforesaid affidavit, the applicant has submitted that he had taken no objection from the earlier counsel Sh. Arvind Singh on 5.5.2010 and thereafter, Sh. A.S. Narang, Advocate, was engaged by him and the date on the vakalatnama of Sh. A.S. Narang, Advocate, which shows that he was engaged on 17.5.2010, was incorrectly put up by his clerk. Sh. A.S. Narang, Advocate, while appearing before this Court has very fairly stated that on 6.5.2010 he had no instructions to appear and he was engaged after 6.5.2010, though no objection was taken by the appellant from Sh. Arvind Singh, Advocate on 5.5.2010. CM No.6800-C of 2010 This is an application for restoration of the appeal which was dismissed in default on 6.5.2010 as none had appeared for the appellant. In this application, which is supported by an affidavit of the applicant, it is mentioned as under: “That the above mentioned appeal came up for motion hearing before this Hon'ble Court on 5.5.2010. Counsel for the respondent requested for an adjournment and the appeal was adjourned for motion hearing to the next day i.e.6.5.2010. On the evening of 5th May, 2010 when the applicant-appellant met his counsel, the counsel for the appellant expressed his inability to appear in the case due to personal reasons and had returned the brief of the appellant along with a no objection certification. The no objection was given on the vakalatnama of the counsel itself and the same is appended herewith as Annexure-A. The applicant-appellant could not engage another counsel, as it was too late in the day. In the above mentioned circumstances, no one appeared on behalf of the applicant-appellant before this Hon'ble Court on 6.5.2010 when the appeal came up for hearing. This Hon'ble Court was pleased to dismiss the appeal in default. The order is reproduced as under:- Present: None for the appellant. Mr. Puneet Bali, Advocate for the respondent. Dismissed in default. May 6, 2010 Sd/- (RAKESH KUMAR GARG) JUDGE” Certified copy of the order dated 6.5.2010 is appended herewith as Annexure-B. That non appearance of the counsel was an act beyond the control of the applicant-appellant and was totally unintentional. Now the appellant has engaged a new counsel to represent him before this Hon'ble Court in the above mentioned appeal. The applicant-appellant craves the kind indulgence of this Hon'ble Court to get the appeal restored and decided on merits after hearing both the counsel. It shall be in the interest of justice, equity and fair-play that the appeal is restored and heard on merits.” In the aforesaid application, the applicant has clearly mentioned that he had taken the brief from his earlier counsel on 5.5.2010 and has engaged a new counsel after the dismissal of the appeal for default and in these circumstances, the non appearance of the counsel was beyond his control and an unintentional. However, the applicant- appellant has nowhere mentioned the reasons which prevented him for appearing before the Court in person to make a request to the Court for an adjournment as admittedly he was pursuing the case diligently. In this view of the matter, the stand taken by the applicant in the application is not supported by his affidavit. I find no reason to recall my order dated 6.5.2010 and the application for restoration of appeal is dismissed. August 23, 2010 (RAKESH KUMAR GARG) ps JUDGE