IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.246 of 2009 Pramod Kumar Ambastha son of late Tej Narain Prasad Ambastha, Resident of No.2, Shastri Nagar, Police Station Munger, District- Munger ------ Petitioner. Versus 1. The Allahabad Bank through its Assistant General Manager , Zonal Office, Shakti Complex, Boring Road, Patna. 2. The Regional Manager-cum-Disciplinary Authority, Bhagalpur, Region, Allahabad Bank, Regional Office, Bhagalpur. 3. The Branch Manager, Allahabad Bank, Jamalpur, District-Jamalpur. 4. Shri S. L. Tiwary, Enquiry Officer, Allahabad Bank, Zonal Office, Shakti Complex, Boring Road, Patna. ------ -------- Opposite Parties. ----------- 3. 17.4.2009 Heard Mr. Dhurjati Kumar Prasad for the petitioner, and Mr. Ajay Kumar Sinha for the opposite parties. This application has been filed by the petitioner of Civil review No. 64 of 2008, which stood dismissed for non-prosecution on account of non-appearance of learned counsel for the petitioner on 3.9.2008. The petitioner had also not complied with the order of the learned Lawazima Board. We have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioner was an employee of the respondent Allahabad Bank. He was subjected to a departmental proceeding for opening false accounts and withdrawing money after forging signatures. The petitioner was dismissed after conclusion of the departmental proceedings, and the departmental appeal also failed leading to C.W.J.C. No. 8240 of 1994. The same was dismissed by a learned Single Judge of this Court by judgment dated 5.8.1999. Aggrieved by the same, the petitioner preferred L.P.A. 2 No. 1278 of 1999. Learned counsel for the appellant did not appear, when the matter was taken up for disposal on 31.1.2008. On a perusal of the materials on record and on consideration of the submissions of learned counsel for the Bank, the appeal on merits was dismissed by the judgment dated 31.1.2008, and that of the learned Single Judge was upheld. The petitioner thereafter filed the said review application bearing Civil Review No. 64 of 2008, which was laid before the learned Lawazima Board on 29.4.2008. As prayed for by learned counsel for the petitioner, four weeks‟ time was granted to remove the defects which were not removed. Consequently the same was laid before the Bench on 3.9.2008. The review application was dismissed for default and for want of prosecution. Hence the present restoration application. Learned counsel for the petitioner submits that it was not open to this Court to dispose of, in the absence of counsel for the appellant, the appeal on merits. It should either have been dismissed for non-prosecution, or should have been adjourned. He relies on the judgment in the case of Sarwan Singh Vrs. Kishan Singh (Dead) through L.R.S. and others, (2007)13 SCC 574. On the other hand, learned counsel for the respondent relies on the order of a Division Bench of this Court in the case of Kedar Nath Tripathi Vrs. State of Bihar, 2008(3) P.L.J.R. 470, wherein it has been held that, in the event of non-appearance of a party or counsel in the writ proceedings, there is no fetter on the Division Bench to decide it on merits. On the other hand, learned counsel for the petitioner submits that he could not for bonafide reasons appear on 3.9.2008. Learned counsel for the opposite 3 party has submitted that learned counsel for the petitioner has attempted to explain for non-appearance on 3.9.2008, but has not explained his failure to carry out the order of the Lawazima Board of 29.4.2008. We are unable to appreciate the contentions advanced on behalf of the petitioner. He submits that it was open to this Court to dismiss the matter for non-prosecution, rather than to decide it on merits, in the absence of learned counsel for the concerned party. It is precisely this which had happened by order dated 3.9.2008, on which date the civil review application was dismissed for non-prosecution. The contention is misconceived. It is stated only to be rejected. It is evident from the narration of events that the petitioner or his counsel were negligent althrough. We are in this connection reminded of the observations made in the order dated 7.1.2009, passed in Civil Review No.127 of 2007 (Vidya Prasad Singh Vrs. The State of Bihar & Ors.). The relevant portion is reproduced hereinbelow for the facility of quick reference: “ It is difficult to recall the judgment in question also in view of growing pendency in courts in India. I am reminded of the conclusion arrived at by Mr. Bibek Debroy in his book entitled „In the Dock: Absurdities of Indian Law‟, that the pending litigations in this country without any addition thereto, will take 324 years for disposal. The following portion of the book by Fali S. Nariman, entitled „India‟s legal system: Can it be saved”, are relevant in the present context: “More than one hundred years ago, a law member in the Government of India (Hobhouse) recorded in a minute dated 5 September 1872(on the 4 Bill leading to the Privy Council Appeal Act, 1874) the following observation: In considering what limit should be assigned to the power of appealing, our leading maxim is, that it is the interest of the commonwealth to have an end of law suits. No man has a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wishes. The state‟s duty is discharged when it has provided such a reasonable amount of attention and skill and honesty as will satisfy reasonable men that their causes have been decided, erroneously or otherwise, on the merits, and according to the best ability of the judge, and so will prevent them from feeling that resentment of sheer injustice which drives people to take the law into their hands and to wage private war. Upon this principle all laws place some limits to litigation. And so have we placed limits to the power of appealing. Pithily put, and elegantly phrased. The portion about no man having a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wished was quoted by Justice Gajendragadkar (who later became Chief Justice of India) in one of the early reports of the Law Commission of India, but despite what was so wisely said by Mr. Hobhouse and again by Chief Justice Gajendragadkar, our laws continue to provide (by way of appeals, reviews and revisions) unlimited draughts on the time and money of the public in order to get private affairs ultimately settled. For instance, we have now abolished second appeals, and yet lawyers go on arguing endlessly about the maintainability of intra-court appeals under special laws.” Furthermore, learned counsel for the writ 5 petitioner is right in his submission that in case of doubt and difficulty with respect to pre-emption cases, the court should lean in favour of the purchaser. In the result, I reach the conclusion of declining to recall the judgment dated 15.5.2007. This review application is accordingly rejected.” In the result, we do not find it possible to recall the order dated 3.9.2008, passed in Civil Review No. 64 of 2008. The present restoration application is accordingly rejected. Vinay/ ( S. K. Katriar ,J. ) (Kishore K. Mandal, J.