Raj Kishore Pandey Vs.
State of U.P. & Ors.  INSC 167 (27 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.450-452 OF 2009 (Arising
out of SLP(C) Nos. 5332-34 of 2008) Raj Kishore Pandey ........ Appellant
Versus State of U.P. & Ors. ........Respondents
Heard learned counsels for the parties to the lis.
This appeal is directed against the orders passed by the High Court of
Judicature at Allahabad in Civil Miscellaneous Writ Petition No. 20552 of 1988
dated 05.08.2003 and the orders passed on Restoration Application No. 216574 of
2005 dated 02.11.2006. By the impugned orders, the court has rejected the writ
petition for non-prosecution and further, has declined to grant the relief
sought in the Restoration Application only on the ground that the reasons stated
in the affidavit accompanying the application are not satisfactory.
A Principal working in the "Paramhans Sanskrit Pathshala" is fighting
against the mighty Management for payment of his salary and other allowances
right from the year 1988. Since all his efforts to pursue the Management to
distribute the arrears of salary and the current salary due to him, he was
constrained to approach the court, inter alia, requesting the court to issue a
writ in the nature of mandamus, commanding the respondents to release the
entire arrears of salary to which he is entitled to and further, to continue to
pay his salary and other allowances as and when the same became due to him.
Respondents have filed their counter affidavits. Pleadings are complete. In the
interregnum, several petitions/applications are filed before the High Court by
both the parties. The appellant has succeeded in all those interlocutory
When the matter was posted before the Court on 05.08.2003, unfortunately for
the appellant, his lawyers could not be present before the court, and,
therefore, the court has rejected the writ petition for non- prosecution on the
ground that though, one of the learned counsel Shri R.M. Saggi has sent his
illness slip, the other counsel, whose name appears in the cause list, was not
present before the court.
The appellant coming to know about the dismissal of the writ petition for
non-prosecution, had filed Restoration Application, bringing to the notice of
the court that he had engaged the services of Shri R.M. Saggi and Shri S.P.
Srivastava, learned advocates, to prosecute the writ petition. Shri Saggi was
unwell on the date when the writ petition was posted for hearing and,
therefore, he had sent his illness slip and had requested the court to
accommodate him on account of illness and further, Shri S.P. Srivastava, whose
name also appeared in the cause list had been elevated to the bench of the High
Court and, therefore, could not appear as the counsel for the appellant.
explanation offered according to the learned Judges is not satisfactory and,
therefore, have rejected the Restoration Application.
Aggrieved by these
two orders, the appellant is before us in this appeal.
our view, the approach of the learned Judges, to say the least is hyper
technical. Admittedly, the appellant had engaged the services of Shri S.P.
Srivastava and Shri R.M. Saggi. Shri Srivastava is elevated to the bench and,
therefore, he could not appear as a counsel for the appellant though his name
was shown in the cause list. The other learned counsel was suffering from
physical ailment. Admittedly, he had sent "illness slip" with the
request for adjournment. When these factual assertions were not in dispute, in
our opinion, court should have allowed the prayer made in the Restoration
Application and should have heard the case on merits which was pending from
last two decades.
is true that the appellant has to take necessary steps to prosecute the
petition by following up action after filing the writ petition. The appellant
had engaged the services of two learned counsels. Unfortunately for him, one
was elevated to the bench and other was suffering with physical ailment. All
this information was forthcoming in the application filed for restoration.
The High Court has
not appreciated these facts. In our opinion, whether the applicant has made out
sufficient cause or not, in the application filed, the court is required to
look at all the facts pleaded in the application. No doubt, the consideration
of the existence of sufficient cause is the discretionary power with the court,
but such discretion has to be exercised on sound principles and not on mere
technicalities. The approach of the court in such matters should be to advance
the cause of justice and not the cause of technicalities. A case as far as
possible should be decided on merits and the party should not be deprived to
get the case examined on the merits.
view of above, in our opinion, we cannot sustain the impugned orders passed by
the High Court, and therefore, the same requires to be set aside and the writ
petition requires to be restored.
we set aside the impugned orders. We restore the writ petition on the file of
the High Court. We request the High Court to consider the writ petition on
merits as expeditiously as possible at any rate within an outer limit of six
months from the date of receipt of copy of this order, after issuing notice to
all the parties concerned.
appeals are disposed of accordingly. No order as to costs.
[ TARUN CHATTERJEE ]
[ H.L. DATTU ]