CWP No.7530 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7530 of 2009 Date of decision:02.08.2010 Amarjit Singh and others ...... Petitioners VERSUS The Commissioner, Ambala Division, Ambala and others ......Respondents CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA. Present: Mr.Vikas Singh, Advocate for the petitioners. Mr.D.Khanna, Addl.A.G., Haryana for respondents no.1 to 3 and 5. Mr.Arvind Singh, Advocate for respondent no.4. ***** RAJIVE BHALLA.J (Oral) The petitioners pray for issuance of a writ in the nature of certiorari for quashing the orders dated 06.05.2008, 20.05.2008, passed by the Collector, Kaithal and the order dated 28.11.2008, passed by the Commissioner, Ambala Division Ambala. The Assistant Collector, Ist Grade, Guhla, ordered the petitioners ejectment and directed them to pay damages @ Rs.10,000/- per hectare vide order dated 22.01.2008. The petitioners filed an appeal before the Collector, Kaithal, which was dismissed for non-prosecution on 06.05.2008. The petitioners filed an application for restoration of the appeal on 06.05.2008 itself but the Collector, Kaithal, dismissed the application, compelling the petitioners to file a revision before the Commissioner, Ambala Division, Ambala, which was also dismissed. Counsel for the petitioners submits that the appeal was dismissed CWP No.7530 of 2009 -2- in default on 06.05.2008, for failure of his counsel to put in appearance. His counsel immediately, filed an application on 06.05.2008 itself pleading that he could not put in appearance as he was busy before the District & Sessions Judge, Kaithal. The Collector, dismissed the application without assigning any cogent reasons. The revision filed by petitioners was rejected by the Commissioner on the grounds that the petitioners did not make a prayer whether oral or written for an adjournment and the application for restoration was not accompanied by an affidavit. It is argued that the failure of his counsel to put in appearance, should not visit the petitioner with adverse consequences. The petitioner engaged his counsel under the bonafide belief that his counsel would put in appearance before the court. The petitioner should not be punished for the fault of his counsel. Counsel for the private respondent submits that the appeal was dismissed in default, so as to avoid payment of the penalty imposed by the Collector. The present petition is a malafide attempt, on the part of the petitioners, to perpetuate their unauthorised occupation. I have heard counsel for the parties, perused the impugned orders and have no hesitation in holding that the orders passed by the Commissioner and the Collector, dismissing the revision and refusing to restore the appeal respectively, are arbitrary and perverse. A litigant, retains a counsel, in the bonafide belief that his counsel would prosecute the case diligently. Failure of his counsel to put in appearance, or negligence of his counsel, shall not visit a litigant with adverse consequences. It would be necessary to point out that the appeal was dismissed on 06.05.2008. The application for restoration was filed on 06.05.2008, itself. It therefore, belies comprehension as to why the application for restoration, has been CWP No.7530 of 2009 -3- dismissed. The reasoning adopted by the Commissioner, that the application was not accompanied by an affidavit disregards the fact that the author of the application, namely the counsel for the petitioners, was present before the Court to support the averments in the application. In view of what has been stated hereinabove, the writ petition is allowed, the orders dated 06.05.2008, 20.05.2008, passed by the Collector, Kaithal and the order dated 28.11.2008, passed by the Commissioner, Ambala Division Ambala, are set aside and the matter is remitted to the Collector, Kaithal, to decide the petitioners appeal afresh subject to payment of Rs.10,000/- as costs. Parties are directed to appear before the Collector, Kaithal, on 06.10.2010. The appeal shall be decided within three months. 02.08.2010 [RAJIVE BHALLA] shamsher JUDGE