Ram Kumar
Gupta & Ors. Vs. Har Prasad & ANR. [2009] INSC 1743 (18 November 2009)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL
NOS.7648-7649 OF 2009 [Arising out of SLP [C] Nos. 938-939 OF 2009 Ram Kumar
Gupta & Ors. ...Appellants Versus Har Prasad &
Anr..............................................Respondents
TARUN
CHATTERJEE, J.
1.
Leave granted.
2.
These appeals are filed against the order dated 28th of December,
2007 passed in Writ Petition (Misc.) Single No. 7361 of 2001 and the order
dated 3rd of October, 2008 passed in CLMA No. 6551 of 2008 and MCC No. 1153 of
2008 respectively of the High Court of Uttarakhand, whereby the High Court had
dismissed the Writ Petition (Misc.)Single No.7361 of 2001 for non prosecution
and rejected the application for restoration of the writ petition on condonation
of delay in filing the same.
3.
The facts of the case are as follows:
The
deceased mother of the appellants Smt. Devki Devi was dispossessed from her
shop on account of deceptive acts of her Manager, namely, Pooranlal Shah who
was engaged by her to run the business of confectionery (Halwai) after the
death of her father. The said Manager got an ex parte order for declaring
vacancy under Section 16(1) of U.P.Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972 (Act No.13 of 1972) and thereafter an ex-parte order
for allotment of shop in question in his favour. The said order was challenged
by the appellants before the High Court of Allahabad and by its judgment and
order dated 9th of January, 1980, the matter was remitted back to the First
Additional District Judge, Nainital to decide it afresh. After remand, the
First Additional District Judge, Nainital by his order dated 5th of March,
1982, again upheld the order of declaring vacancy and allotment in favour of
the said Manager. On 25th of May, 1982, the appellants filed a Civil Misc. Writ
Petition No. 5997(A)/1982 in the High Court of Allahabad challenging the
aforesaid order 3 dated 5th of March, 1982 passed by the First Additional
District Judge, Nainital. The said writ petition was admitted by the High Court
of Allahabad. Subsequently, on the creation of State of Uttarakhand, the said
writ petition was transferred to the High Court of Uttarakhand at Nainital and
was re- numbered as W.P.(S)No.7361 of 2001. An application for substitution of
the deceased Smt. Devika Devi was filed which was allowed by an order dated
17th of December, 2007. The appellants were thus substituted in place of the
deceased Smt. Devki Devi in the pending writ petition. By a separate order of
the same date, another application filed by the appellants for the substitution
of heirs and legal representatives of deceased respondent Pooranlal Shah -
Manager was also allowed by the High Court. However, by an order dated 28th of
December, 2007, the High Court dismissed the writ petition for non-
prosecution. For restoration of the writ petition dismissed for
non-prosecution, an application was filed by the appellants through their
learned counsel Shri Bindesh Kumar Gupta.
Since Sh.
Gupta did not appear at the time the said application for restoration was
listed for hearing i.e. on 26th of 4 March, 2008, the said application for
restoration was also rejected by a learned Judge of the High Court for non-
prosecution. Sometime in the month of September, 2008, a second application for
restoration of the writ petition was filed by the appellants saying that since
Sh. Gupta was appointed as the Additional Advocate General of the State, he
could not appear when the writ petition was taken up for hearing. The High
Court by the order dated 3rd of October, 2008 dismissed the second application
for restoration on the ground of delay and latches without passing a speaking
and reasoned order.
Feeling
aggrieved by the order of the High Court rejecting the writ application for
non-prosecution and subsequent order rejecting the application for restoration,
the appellants have filed two Special Leave Petitions, which on grant of leave,
were heard in the presence of the learned counsel for the appellants only. At
this stage, it may be mentioned that in spite of repeated services on the
respondents, no one had chosen to appear before us at the time of hearing of
these appeals.
We have
heard the learned counsel for the appellants and also examined the materials on
record including the two 5 orders passed by the High Court, one being rejection
of the writ petition for non-prosecution and the other being the order of
rejection for restoration of the writ petition. The case that was made out by
the appellants for restoration of the writ petition was that the learned
counsel for the appellants Sh.
Gupta
could not appear before the learned Judge of the High Court as at that point of
time, he was designated as Additional Advocate General of the State and for
that reason, it was not possible for him to appear at the time of hearing of
the writ petition as well as for restoration of the writ petition. Keeping this
fact in mind and the fact that the appellants could not be represented at the
time of hearing of the writ petition, we feel it appropriate to restore the
writ petition to its original file in order to give an opportunity to the
appellants to contest the same on merits. As noted hereinabove, for restoration
of the writ petition dismissed for non-prosecution, an application for
restoration was filed by the appellants which was rejected only on the ground
of delay and latches. But on a perusal and on proper examination of the record
of this case, we find that no delay was caused by the appellants in filing the
application for 6 restoration of the writ petition. In any view of the matter,
the appellants cannot be punished for the lapses even if there was any, as the
appellants had engaged a learned counsel to appear and contest the writ
petition. That apart, considering the fact that the appellants had been
prosecuting the litigation since 1982 diligently and there was no lapse on
their part till the writ petition was dismissed for non prosecution and also
considering the fact that a lawyer was engaged by them to contest the matter in
the High Court who, however, subsequently was designated as an Additional
Advocate General of the State and, therefore, could not be present at the time
the writ petition was taken up for hearing, we cannot but hold that it would be
improper that the appellants should be punished for non appearance of the
learned counsel for the appellants at that time as we are of the view that the
appellants were suffering injustice merely because their chosen advocate had
defaulted. In Rafiq & Anr. vs. Munshilal & Anr. [1981 (2) SCC 788],
this Court has also drawn the same conclusion while considering the application
for restoration of a writ application when the learned counsel for 7 the
appellant could not be present at the time of hearing of the application.
In view
of our discussions made herein above, we are, therefore, of the view that both
the orders, namely, the order of rejection of the application for restoration
as well as the application for dismissal of the writ application for non
prosecution are liable to be set aside. Accordingly, both the orders are set
aside and the writ petition is restored to its original file. However,
considering the facts and circumstances and length of the matter being kept
pending in court, we restore this writ application subject to the condition
that the appellants shall deposit and pay a sum of Rs.10,000/- as costs to the
respondent within two months from the date of filing of a copy of this order in
the High Court.
We make
it clear that in the event, the amount of cost, as indicated above, is not
deposited within the time specified herein, the appeals shall stand dismissed
and the impugned orders shall stand affirmed. In the event, the cost, as
indicated, is deposited within the time specified herein above, the High Court
is requested to dispose of the writ petition at 8 an early date preferably
within three months from the date of deposit of the amount by the appellants in
the High Court.
The
appeals are thus allowed to the extent indicated above.
There
will be no order as to costs.
.............................J. [Tarun Chatterjee]
..............................J.
New Delhi;
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