Lakhi Narayan Sonowal
Vs. State of Assam & ANR. [2009] INSC 638 (27 March 2009)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NOS. 2051-2052 OF 2009 (Arising out of SLP(C) Nos.
2135-2136/2008) Lakhi Narayan Sonowal .. Appellant(s) Versus State of Assam
& Anr. .. Respondent(s) ORDER Leave granted.
These appeals are
directed against two orders, dated 22nd August, 2007 and 17th September, 2007,
passed by the Gauhati High Court at Gauhati respectively in Writ Appeal No. 298
of 2007 and Miscellaneous Case No. 3254 of 2007. By the first order, the
appellate Bench of the High Court dismissed the appeal preferred by the
appellant for non-prosecution as his counsel failed to appear in Court and by
the latter order, application seeking recall of order dated August 22, 2007 has
been dismissed.
It appears that on
dismissal of the appeal on August 22, 2007, an application for recall of the
said order was filed on August 24, 2007, wherein it was pleaded that counsel
for the appellant could not appear in Court because of the confusion created by
the Bandh call given by a Socio-political organisation, followed by motor
strike, which ..C.A. Nos. 2051-2052/2009...contd...
disrupted the normal
life. Rejecting the plea of the appellant, the Division Bench observed thus :
"On 22.8.07 this
Court functioned normally and the learned Advocates appeared in many cases and,
therefore, we are not inclined to accept that the learned counsel for the
petitioner was prevented by reasons beyond his control.
We see no merit in
this application. The application is dismissed."
Hence the present
appeals.
We have heard learned
counsel for the parties.
It is true that no
Court is obliged to adjourn a case because of the difficulty of a counsel and
as a matter of fact it is the solemn duty of every Court to proceed with the
judicial business fixed for the day yet in an appropriate case where no fault
lies at the door of the litigant, the Court should not be in a hurry to dismiss
the case in default or for non-prosecution on account of absence of his
counsel. Ultimately, it is the litigant who is to suffer the consequences of
such an order. In any case the Court should be considerate while dealing with
an application for recall of dismissal or ex-parte order and if a justifiable
cause for non-appearance of the counsel is made out,such an order may be
recalled, subject of course to the conditions the Court may like to impose.
C.A. Nos.
2051-2052/2009...contd...
Having perused the
application filed by the appellant for recall of order dated 22nd August, 2007,
which has been placed on record, we are convinced that it was a fit case where
the Appellate Bench of the High Court should have exercised its jurisdiction
and recalled the said order, dismissing the appeal for non-prosecution.
Accordingly, the
appeals are allowed, orders dated 22nd August, 2007 and 17th September, 2007
are set aside and writ appeal is restored to its original position for disposal
on merits in accordance with law.
No order as to costs.
...................J.
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