Civil Revision No.4390 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4390 of 2005 (O&M) Date of decision : 23-7-2009 Dalip Singh ....Petitioner VERSUS Net Ram and others ....Respondents CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Yogesh Kumar Sharma, Advocate, for the petitioner. Mr. Ashok Khubbar, Advocate with Mr. R.S. Mamli, Advocate, for the respondent. RAJIVE BHALLA, J. CM No.16627-CII of 2009 CM is allowed as prayed for. Affidavit of Sh. Hari Krishan, counsel for the petitioner before the trial Court is taken on record. CR No.4390 of 2005 The petitioner prays for setting aside the orders dated 12-09-2003 and 9-09-2004, passed by the Additional Civil Judge (Senior Division), Jagadhri, dismissing the suit for non-prosecution and thereafter, dismissing his application for restoration of the suit. In addition, the petitioner impugns an order dated 23-07-2005, passed by the Additional District Judge, Jagadhri, dismissing his appeal. Counsel for the petitioner submits that the non-appearance of the petitioner and his counsel was unintentional and on account of Civil Revision No.4390 of 2005 (O&M) -2- a bona fide inadvertent error in noting the date. It is submitted that initially the suit and the application filed under Order 39 Rule 2-A of the Code of Civil Procedure, were fixed on the same dates but were subsequently separated. The petitioner and his counsel were not aware of this fact and were under a wrong impression that both proceedings were fixed for the same date . As a result, neither the petitioner nor his counsel could put in appearance before the trial court, leading to the dismissal of the suit for non-prosecution on 12- 09-2003. The petitioner came to know of the dismissal of the suit on 15-01-2004, while appearing in the proceedings under Order 39 Rule 2-A, and immediately filed an application on that very day. The trial court however, dismissed the application as barred by time. The appellate court dismissed the appeal on the ground that the extract of the diary appended with the appeal did not relate to the petitioner's counsel. Counsel for the petitioner submits that Shri Hari Krishan, Advocate was engaged as a counsel prior to the dismissal of the suit in the year 2002. This fact is borne out from his diary. It is further pointed out that Sh. Hari Krishan, Advocate has filed an affidavit dated 18-07-2009 acknowledging the fact that he was engaged as a counsel and has also produced for perusal, his diary for the years 2002, 2003 and 2004. It is submitted that as there is no possibility of any interpolation or fabrication in the diary, the appellate court unnecessarily cast a doubt upon the petitioner's assertions and dismissed the appeal. It is further argued that to punish the petitioner for failure of his earlier counsel to file his affidavit, would be a Civil Revision No.4390 of 2005 (O&M) -3- travesty of justice as a litigant does not have any control over a counsel, If deemed necessary, the court could have called upon the previous counsel to file his affidavit. Counsel for the respondent, however, submits that the impugned orders do not suffer from any error whether of jurisdiction or of law and therefore, cannot be set aside under Article 227 of the Constitution of India. It is submitted that apart from the fact that the application is barred by time, the petitioner made an attempt to mislead the appellate court and therefore, does not deserve the exercise of any beneficial discretion in his favour. I have heard counsel for the parties, perused the impugned orders, the affidavit filed by Sh. Hari Krishan, Advocate, Yamuna Nagar at Jagadhri and his diaries for the years 2002, 2003 and 2004. Where, the error is bona fide, courts tend to adopt a pragmatic approach. A litigant reposes implicit faith in his counsel and to therefore, punish a litigant for an error of his counsel , particularly where the error is bonafide would in my considered opinion perpetuate injustice. Reverting to the facts of the instant case, it is not denied that the suit and an application filed under Order 39 Rule 2A were fixed for the same dates but were subsequently segregated. The petitioner's assertion that he and his counsel were under a bona fide error that these proceedings were fixed on the same date and therefore, could not appear in the suit on 12-9-2003 appears to be a bona fide explanation for their absence. The appellate court, on the other hand, though initially inclined to accept the appeal rejected the prayer by holding that the petitioner had produced the diary of Sh. Civil Revision No.4390 of 2005 (O&M) -4- Hari Krishan, Advocate who was not his counsel. It was also held that appellant had failed to produce the affidavit of his counsel Sh. I.L. Gambhir. Sh. Hari Krishan, Advocate has filed an affidavit to the effect that he was engaged as a counsel on 3-1-2002. The case was adjourned to 30.05.2002, 16.04.2003 and 10.02.2004, but he was unaware that the cases had been segregated. The diaries produced before this Court support the averments in the affidavit. The title of the suit is recorded in the diary on the above dates. The nature of the entries rules out the possibility of any interpolation. As Sh. Hari Krishan, Advocate has acknowledged his mistake and as I do not find any reason to doubt his bona fides , the petitioner cannot be made to suffer for the fault of his counsel. It would be necessary to mention here that the application was filed on the day, the petitioner came to know of the dismissal of the suit and, therefore, the Courts below should not have held the application to be barred by time. In view of what has been stated hereinabove, the revision petition is allowed. The orders dated 12-9-2003, 9-9-2004 and 23-7- 2005 are set aside subject to payment of Rs.10,000/- as costs and the suit is restored to the file of the Additional Civil Judge (Senior Division) Jagadhri, for further proceedings. Parties are directed to appear before the court of Additional Civil Judge (Senior Division) Jagadhri on 27-08-2009. (RAJIVE BHALLA) 23-07-2009 JUDGE manju